Tribal Cultural and Heritage Cooperation Authority Technical Guide

United States Department of Agriculture

Tribal Cultural and Heritage Cooperation 

Authority Technical Guide

A Companion to the Forest Service Directives

For implementing the Cultural and Heritage Cooperation Authority

25 U.S. Code Chapter 32A

Forest Service FS-1137 October 2019
Tribal Cultural and Heritage Cooperation Authority Technical Guide

Cover photo: Look up in sky inside a Native American tepee. Photo by UpPiJ, iStock.

Developed by the Forest Service Tribal Relations Program Team

This technical guide is designed for use by Forest Service personnel and is intended to be a living document. As new 

authorities, policies, and procedures are developed and implemented, this document will be changed and improved. Please 

send any suggested changes to the Forest Service Office of Tribal Relations via email (tribal_relations@fs.fed.us) or via mail 

at 201 14th Street SW, Yates—3rd Floor Southwest, Washington, DC 20250-1160.

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orientation, disability, age, marital status, family or parental status, income derived from a public assistance program, political 

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all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident. 

Persons with disabilities who require alternative means of communication for program information (e.g., Braille, large print, 

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information may be made available in languages other than English. 

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online at http://www.ascr.usda.gov/complaint_filing_cust.html and at any USDA office or write a letter addressed to USDA 

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USDA is an equal opportunity provider, employer, and lender.
Tribal Cultural and Heritage Cooperation Authority Technical Guide

Contents

Executive Summary.......................................................................................................................................................... 1

Introduction: Why Was the Cultural and Heritage Cooperation Authority Created? ....................................................... 2

Chapter 1—Reburial of Human Remains and Cultural Items: 25 U.S. Code 3053 ......................................................... 3

Purpose ...................................................................................................................................................................... 3

Background and Business Need ................................................................................................................................ 3

Key Concepts—Laws and Agency Policies .............................................................................................................. 4

Applying NAGPRA, NHPA, and the CHCA............................................................................................................. 4

Confidentiality ........................................................................................................................................................... 5

Suggestions for Reburial of Remains Not Originating From Forest Service Lands ................................................. 7

Sample Action Plan for the Reburial of Human Remains on National Forest System Lands................................... 7

Forest Service Manual Direction for Reburial........................................................................................................... 8

Chapter 2—Temporary Closure for Traditional and Cultural Purposes: 25 U.S. Code 3054 .......................................... 11

Purpose ...................................................................................................................................................................... 11

Background and Business Need ................................................................................................................................ 11

Key Concepts............................................................................................................................................................. 11

Issuance of Closure Orders Pursuant to 36 CFR 261.53(g)....................................................................................... 11

Chapter 3—Forest Products for Traditional and Cultural Purposes: 25 U.S. Code 3055 ................................................ 15

Purpose ...................................................................................................................................................................... 15

Background and Business Need ................................................................................................................................ 15

Key Concepts—Definitions....................................................................................................................................... 15

Key Concepts—Law and Agency Policy .................................................................................................................. 16

Applying Free-Use Authorities.................................................................................................................................. 16

Chapter 4—Prohibition on Disclosure (Confidentiality): 25 U.S. Code 3056................................................................. 18

Purpose ...................................................................................................................................................................... 18

Background and Business Need ................................................................................................................................ 18

Key Concepts............................................................................................................................................................. 19

Forest Service-Specific Withholding Statutes ........................................................................................................... 21

Collecting Confidential Information and Data .......................................................................................................... 22

Control and Protection of Sensitive Security Information ........................................................................................ 23

Managing Confidential Information and Data........................................................................................................... 24

Appendix A—Definitions................................................................................................................................................. 25

Appendix B—The Cultural and Heritage Cooperation Authority .................................................................................... 27

Appendix C—Reburial of Human Remains (Chapter 1).................................................................................................. 31

Appendix D—Templates for Temporary Closures ........................................................................................................... 40

Appendix E—Templates for the Provision of Forest Products......................................................................................... 42

Appendix F—Templates for Confidentiality Agreements (Chapter 4)............................................................................. 49

i
Tribal Cultural and Heritage Cooperation Authority Technical Guide

Acronyms

ACHP Advisory Council on Historic Preservation

AIRFA American Indian Religious Freedom Act

ARPA Archaeological Resources Protection Act

CFR Code of Federal Regulations

CHCA Cultural and Heritage Cooperation Authority

CRIA Civil Rights Impact Analysis

CRPA Cave Resource Protection Act

DUNS Dun & Bradstreet Number

EO Executive Order

FOIA Freedom of Information Act

FS Forest Service, an Agency of the U.S. Department of Agriculture

FSH Forest Service Handbook

FSM Forest Service Manual

FWS U.S. Fish and Wildlife Service

GIS Geographic Information System

GLIFWC Great Lakes Indian Fish and Wildlife Commission

IPR Intellectual Property Rights

MOA Memorandum of Agreement

MOU Memorandum of Understanding

MTA Material Transfer Agreement

NAGPRA Native American Graves Protection and Repatriation Act

NEPA National Environmental Policy Act 

NF National Forest

NFMA National Forest Management Act

NFS National Forest System

NHPA National Historic Preservation Act

NPS National Park Service

RFRA Religious Freedom Restoration Act

SHPO State Historic Preservation Officers

SSI Sensitive Security Information

T&E Threatened and Endangered

THPO Tribal Historic Preservation Officers

TIM Timber Management Information System

USC U.S. Code

USDA U.S. Department of Agriculture

VITF Voigt Intertribal Task Force

(Note: All statutory and other hyperlinks were last accessed July 2017.)

ii
Tribal Cultural and Heritage Cooperation Authority Technical Guide

Executive Summary

Technical Guide 1

Mike Johanns, then U.S. Secretary of Agriculture, ▪ Forest Products for Traditional and Cultural 

transmitted a legislative proposal to the 109th Congress Purposes (Section 8105/25 USC 3055): Authorizes the 

following recommendations from the Forest Service, an Secretary to provide certain forest products to federally 

Agency of the U.S. Department of Agriculture (USDA), recognized Tribes, free of charge, when they are used that addressed recurring impediments to good working for traditional and cultural purposes. relationships between Tribes and the Forest Service. In 

addition to policy and administrative recommendations, the The Forest Service receives many requests every year 

Forest Service team identified the need for new or clarified from Indian Tribes and individual Native Americans 

legal authorities to improve these relationships. Senator to acquire forest products, and chapter 3 outlines 

Byron Dorgan (D-ND) introduced those desired measures the authorities and mechanisms by which managers 

into the Farm Bill as enacted, and they were later codified may implement their authority to provide—or not to 

at 25 U.S. Code (USC) 32A, the Cultural and Heritage provide—forest products to federally recognized Tribes 

Cooperation Authority (CHCA). The Secretary delegated for traditional and cultural purposes. authority for these provisions to the Forest Service, where 

they apply only to National Forest System (NFS) lands and ▪ Prohibition on Disclosure (Section 8106/25 USC 

to federally recognized Tribes— 3056): Provides the Secretary an exemption under 

the Freedom of Information Act (FOIA) to withhold 

▪ Reburial of Human Remains and Cultural Items information relating to reburials, sites, human remains, 

(Section 8103/25 USC 3053): Explicitly authorizes the or resources of traditional or cultural importance and 

reburial of human remains and associated cultural items information relating to traditional and cultural resources 

on NFS lands, if they were originally recovered from and practices provided in the course of research 

NFS or adjacent lands. activities.

 Chapter 1 of this technical guide provides basic The purpose of chapter 4 is to provide information to 

information regarding the authorities, options, and Agency personnel about the available authorities and 

scenarios for the reburial of Native American and protocols for protecting information provided to the 

Alaska Native remains on NFS lands, primarily related Forest Service by Indian Tribes regarding traditional 

to repatriation actions under the Native American and cultural purposes, traditional knowledge, and sacred 

Graves Protection and Repatriation Act, as they sites. Although the legal mandate to share information 

comprise the bulk of requests the Forest Service has under FOIA is compelling, exemptions to such 

received. sharing further mandate the protection of some Tribal 

information. ▪ Temporary Closure for Traditional and Cultural 

Purposes (Section 8104/25 USC 3054): Gives the 

Secretary of Agriculture authority to temporarily close While granting these additional authorities, the CHCA also 

preserves all existing Tribal rights, all existing agreements from public access NFS land for traditional and cultural between Tribes and the Forest Service, existing trust purposes. responsibilities, and any other outstanding rights to use of 

 Chapter 2 provides background information and best NFS land or other public land.

practices for the temporary closure of NFS lands for the 

privacy of Tribal activities for traditional and cultural The appendixes in this technical guide provide additional 

purposes as well as complementary closure rules in 36 information that includes definitions, case studies, sample 

Code of Federal Regulations (CFR) 261.3. policies, and templates to further assist decision makers in 

exercising the CHCA in furtherance of strong Forest ServiceTribal relationships. As a dynamic document, updates and 

new additions to this technical guide will be made as policies 

are developed or refined and best practices continue to be 

identified.
2 Tribal Cultural and Heritage Cooperation Authority Technical Guide

Introduction: Why Was the Cultural and Heritage 

Cooperation Authority Created?

A U.S. Department of Agriculture, Forest Service team 

identified several recurring issues that impeded the Forest 

Service’s working relationships with American Indian 

and Alaska Native Tribes and recommended changes to 

improve and clarify several key policies, administrative 

procedures, and legal authorities. Upon review of the 

recommendations from the Forest Service team, thenSecretary of Agriculture Mike Johanns transmitted to the 

109th Congress a legislative proposal to facilitate stronger 

Federal-Tribal relationships. These efforts led Senator 

Byron Dorgan (D-ND) to introduce the proposal in the 

Food, Conservation, and Energy Act of 2008 (2008 Farm 

Bill), which resulted in Title VIII—Forestry, Subtitle B of 

Public Law 110–234, the Cultural and Heritage Cooperation 

Authority (CHCA). The CHCA, now codified at 25 U.S. 

Code, chapter 32A, sections 3051-3057, provides legal 

authority to improve numerous matters of concern regarding 

relations between federally recognized Indian Tribes, the 

National Forest System (NFS), and Forest Service Research 

and Development. The CHCA is short. If you have not 

already done so, read it. It is included at the end of this 

technical guide as appendix B.

What Is the Purpose of the CHCA? 

The CHCA outlines Agency conduct as it pertains to (1) 

reburials of human remains and cultural items on NFS 

lands; (2) temporary closure for traditional and cultural 

purposes; (3) providing forest products free of charge 

for traditional and cultural purposes; (4) a prohibition on 

disclosure of information pertaining to reburials, sites, or 

resources of traditional and cultural importance; and (5) 

protection of all reserved rights to use NFS land or other 

public land. 

Why Was This Technical Guide 

Developed?

The team of Forest Service staff who developed this 

technical guide was engaged in Tribal relations across the 

country and in the Washington office. They undertook 

review and evaluation of authorities, policies, tools, 

protocols, and case studies with the intent to provide—

▪ Guidance for Agencywide use on how to protect Tribal

rights and interests and enhance opportunities for

exercising those rights.

▪ A clear and concise summary of available authorities,

and what actions and results are expected in Agency

operations.

▪ Analyses and decision support to effectively meet

the tiered goals of the Forest Service Tribal Relations

Strategic Plan and the Forest Service Strategic Plan.

This technical guide aims to help Forest Service employees, 

Tribal partners, and other interested parties engage with 

one another to work toward mutually beneficial resolutions. 

Cross-references between specific Forest Service policies 

and the CHCA provide consistency and predictability in 

how those policies are applied throughout the Agency. 

Predictable decision making, actions, and results will 

enhance key stakeholder confidence in the Forest Service’s 

ability to appropriately implement programs in the context 

of the CHCA.

The Forest Service directives for Tribal relations (Forest 

Service Manual 1563 and Forest Service Handbook 

1509.13) include policy and guidance related to the 

implementation of the CHCA. This technical guide is 

intended for use as a complementary reference to those 

directives and provides additional recommendations 

derived from best management practices within the Agency.

This technical guide is intended to be iterative and will be 

amended as accomplishments provide new examples of 

successful implementation or with changes to pertinent law 

or policy. Users should refer to the Forest Service Office 

of Tribal Relations website for the latest version of this 

technical guide.
Tribal Cultural and Heritage Cooperation Authority Technical Guide 3

Chapter 1—Reburial of Human Remains and 

Cultural Items:25 U.S. Code 3053

Purpose

This chapter of the Cultural and Heritage Cooperation 

Authority (CHCA) technical guide provides basic 

information regarding the authorities, options, and 

scenarios for the reburial of Native American and Alaska 

Native remains on National Forest System (NFS) lands.

Background and Business Need

The remains of several thousand Native American 

individuals have been repatriated under the provisions of 

the Native American Graves Protection and Repatriation 

Act (NAGPRA). Thousands more will be repatriated in 

years to come. Consequently, many Indian Tribes and 

Native communities seek reburial locations on NFS lands. 

Indian Tribes may also request reburial on NFS lands 

for remains that were not subject to the provisions of 

NAGPRA. This chapter aims to provide background for 

a variety of repatriation situations and recommends best 

management practices to use in response to Tribal requests.

The reburial section of the CHCA is intended to “authorize 

the reburial of human remains and cultural items on 

NFS land, including human remains and cultural items 

repatriated under NAGPRA.” The word “including” 

is italicized here to emphasize that human remains 

and cultural items repatriated under NAGPRA are not 

the only human remains and cultural items that can be 

reburied on NFS land. For instance, human remains and 

cultural items exhumed or collected by the Smithsonian 

Institution, State museums, and private collectors may not 

fall under NAGPRA repatriation authority. Those remains 

and items may be reburied on NFS land if they meet the 

other requirements within the CHCA (e.g., originating 

from NFS lands or an adjacent site). This chapter of the 

CHCA technical guide focuses primarily on reburials from 

NAGPRA repatriation actions because they comprise 

the bulk of requests the Forest Service has received. In 

addition, reburials of human remains and cultural items that 

come from outside the context of NAGPRA will usually 

follow the same processes and procedures as those that 

come from NAGPRA repatriations. See Scenario 3 on page 

36 for an example.

In the context and language of this technical guidance, 

the terminology used follows the definitions contained in 

NAGPRA.

For decades, American Indians and Alaska Natives sought 

legislative authority for the reburial of human remains 

and cultural items, including those repatriated through 

NAGPRA. In response to Tribal nations and member 

requests, the National Congress of American Indians, the 

United South and Eastern Tribes, the Intertribal Timber 

Council, and other Tribal organizations collaboratively and 

successfully worked with Congress to incorporate authority 

for reburial into Title VIII—Forestry, Subtitle B—Cultural 

and Heritage Cooperation Authority into the Food, 

Conservation, and Energy Act of 2008. CHCA, as codified 

25 U.S. Code (USC) 3053, provides direction and authority 

for the Forest Service to—

▪ Rebury human remains and cultural items on NFS lands 

providing that those remains were removed from NFS 

lands or sites adjacent to NFS lands, including human 

remains and cultural items repatriated under NAGPRA

(25 USC 32), at Federal expense, or using other funds; 

▪ Prevent the unauthorized disclosure of information 

regarding reburial sites, including the quantity and 

identity of human remains and cultural items reburied 

and the location of reburial sites; 

▪ Protect the confidentiality of certain information, 

including information regarding reburials that may be 

culturally sensitive to Indian Tribes; and

▪ Strengthen support for protecting and preserving the 

traditional, cultural, and ceremonial rites and practices 

of Indian Tribes, in accordance with the American 

Indian Religious Freedom Act (AIRFA at 42 USC 

1996).

This chapter of the CHCA technical guide aims to increase 

process consistency for the Tribal Relations and Heritage 

programs planning for the reburial of human remains by 

describing—

▪ Law and Agency policy.

▪ Procedural guidance and tools.

▪ Key topic areas.

▪ Possible decisions related to reburial programs.

▪ Case studies.
4 Tribal Cultural and Heritage Cooperation Authority Technical Guide

This chapter consolidates reburial policy and information 

into one source in order to—

▪ Expedite the reburial of human remains by increasing

the preparedness and efficiency of Heritage and Tribal 

Relations staff members.

▪ Reduce administrative appeals and litigation by

clarifying Tribal consultation requirements and 

treatment of human remains prior to and during reburial.

▪ Strengthen the Agency’s relationships with Indian Tribes 

through mutually agreed reburial protocols that are welldefined early in the consultation process.

▪ Ensure the confidentiality and security of reburial

locations and all associated information.

Key Concepts—Laws and Agency 

Policies

CHCA codifies the authority provided to the Forest Service 

in the 2008 Farm Bill. Section 3053 of the CHCA pertains 

to reburial.

NAGPRA is a Federal law passed in 1990. This law 

provides a process for museums and Federal agencies 

to resolve possessory rights to certain Native American 

cultural items—human remains, funerary objects, sacred 

objects, or objects of cultural patrimony—to lineal 

descendants, and culturally affiliated Indian Tribes and 

Native Hawaiian organizations. The NAGPRA does not 

explicitly address reburial of Native American human 

remains repatriated by museums and Federal agencies 

subject to NAGPRA. That is, NAGPRA provides for Indian 

Tribes to take possession of the remains, but does not 

establish the authority to rebury on NFS lands.

National Historic Preservation Act (NHPA) was passed 

in 1966 and substantially amended in 1980 and 1992. 

The NHPA requires all Federal agencies to consider the 

effects of their projects and programs on historic properties 

and provides the structure and direction for all Federal 

management of important cultural resources. The NHPA is 

the centerpiece of historic preservation legislation, following 

on and bolstered by the Antiquities Act of 1906, the Historic 

Sites Act of 1935, the Reservoir Salvage Act of 1960, the 

Archaeological and Historical Data Preservation Act of 1974, 

and the Archaeological Resources Protection Act (ARPA) of 

1979 (36 Code of Federal Regulations [CFR] 296). The 1992 

NHPA amendments are of special interest in this discussion 

because those amendments incorporated direction for Federal 

agencies to give special attention to sites of religious and 

cultural interest to Indian Tribes.

▪ The regulations (36 CFR 800 and 54 USC 300101)1 

require agencies to consult with various parties—State 

and Tribal Historic Preservation Officers, Indian Tribes 

or Native Hawaiian organizations, and others—to 

determine if the proposed project may have an effect on 

a property listed or eligible for listing on the National 

Register of Historic Places, and if so, what measures 

might be appropriate to minimize or mitigate that effect.

▪ Many reburials will have very little or no effect on 

historic properties when reburials avoid the salient 

features of known historic properties, do not require 

physical site preparation, and avoid extensive ground 

disturbance. Such cases usually conclude with an 

official NHPA determination of “no effect,” “no historic 

properties affected,” or “no adverse effect” (36 CFR 

800.4(d) and 800.5).

▪ The NHPA and ARPA provide information 

confidentiality under provisions of the Freedom of 

Information Act (FOIA) that add to the confidentiality 

provisions found in the CHCA.

Applying NAGPRA, NHPA, and the 

CHCA

Tribal governments and the Forest Service should have 

meaningful, government-to-government, discussions to 

determine—

▪ Mutually acceptable solutions to protect and manage

reburial sites.

▪ How Tribal government organizations will be involved 

in protecting and managing their reburial sites.

▪ What framework will be used for future collaborative

efforts, with special emphasis on how to incorporate 

Tribe-authorized members to help protect reburial sites.

Native American and Alaska Native concerns expressed 

most often during consultation or through personal 

testimony include—

▪ Reburied remains may be disturbed in the future.

▪ Forest Service staff may interfere with Tribal spiritual 

practices.

▪ Reburial of culturally unidentifiable human remains

should be conducted with sensitivity and in a 

traditionally appropriate manner.

1

 Effective December 19, 2014, the National Historic Preservation Act (NHPA) has been moved to a new location in the U.S. Code (USC), the official 

compilation of Federal statutes. The Advisory Council on Historic Preservation expects stakeholders to transition to usage of the new USC citations to 

the NHPA as soon as they are reasonably able. Note, however, that the law that moved the NHPA to Title 54 specifies that a reference to an old Title 16 

provision (e.g., 16 USC 470f, for Section 106 of the NHPA) is legally deemed to refer to the corresponding provision in the new Title 54. No amendments to 

past NHPA correspondence or existing Section 106 agreements will be needed or expected. The regulations implementing Section 106 of the NHPA, at 36 

CFR Part 800, are not affected by this recodification.
Tribal Cultural and Heritage Cooperation Authority Technical Guide 5

Line Officers’ Responsibilities

The responsibility for authorizing reburials on NFS lands 

resides with the regional foresters. The regional foresters 

may delegate that authority, in writing, to forest and 

grassland supervisors under their supervision.

1. Timeframe: Ensure that requests for reburial are 

addressed in a timely manner.

2. Consultation: When authorizing reburials, consult with 

the lineal descendants or culturally affiliated Indian 

Tribe(s) to develop a Memorandum of Understanding 

(MOU) that outlines the reburial process. This may 

include site protection and management protocols. An 

understanding may take the form of correspondence 

rather than a formal MOU. This agreement may include 

reburial of human remains and associated funerary 

objects (Forest Service Handbook (FSH) 1509.13).

3. Notification: Inform the appropriate law enforcement

agents of reburial activities in order to protect reburial 

sites through monitoring and surveillance activities.

4. Avoid conflicting uses: Identify areas where anticipated 

uses will not cause future impacts or physical harm to 

the site and, in consultation, a location that is consistent 

with Tribal cultural, spiritual, and religious requirements 

for reburial purposes.

5. Mitigation measures: Develop and implement mitigation

measures in consultation with Tribal governments, 

clans, and individuals to minimize or avoid adverse 

impacts to reburial sites that may be caused by 

particular land uses. Ensure these mitigation measures 

will be implemented for the long run.

6. Coordination and reporting: A critical first step is to 

ensure that all requests for reburial are reported and 

coordinated with the Regional Tribal Relations Program 

Manager, Regional Heritage Resources Program 

Manager, and appropriate law enforcement personnel.

Management Tools

1. Placement of remains in a historic property (e.g.,

within an archaeological site) provides maximum legal 

protection of the site under the provisions of NHPA

and ARPA. Both of these laws provide for additional 

security of the site and associated information.

2. When remains are known to have been removed from

a specific site, consider the reburial of these remains at 

that location. Evaluate, on a case-by-case basis, whether 

proposed site preparation may affect any historic 

property at the site. Alternative locations should be 

considered if a reburial would cause an adverse effect to 

known properties.

3. When remains are not reburied at the site of their

original interment, consider reburial at another historic 

property. Evaluate reburial plans on a case-by-case basis 

for proposals within a known historic property. It is 

reasonable to follow the standard NHPA review process 

to determine whether the proposed reburial method 

would adversely affect the historic property, and if so, 

what steps (if any) could be taken to reduce or mitigate 

that adverse effect. Such cases may be resolved with 

terms and conditions established in a Memorandum of 

Agreement, or MOA (36 CFR 800.6).

4. During consultation, provide information to Indian

Tribes, clans, and family members regarding appropriate 

reburial locations including the location from which the 

remains were removed. At this time, it is important to 

determine the status of the reburial location in regard to 

the Sacred Sites executive order (Executive Order [EO] 

13007). The Forest Service must depend on the Indian 

Tribes to identify and designate sacred sites.

5. Redirect public use away from reburial sites, including

those not located on a historical property. This may 

require landscape-level considerations of potential land 

and resource management actions.

6. Restrict permit issuance. Deny or redirect permits for

use of areas or materials that contain reburial sites.

7. During the Forest planning process, ensure that

consideration is given to special areas identified by 

Indian Tribes. Create planning information and direction 

that enables and protects areas suitable for reburial, as 

well as previous reburial sites. Ensure confidentiality of 

information, as appropriate, to avoid public disclosure 

of confidential information during the planning process 

and in plan documents.

Confidentiality

Forest Service personnel should ensure that information 

about reburial locations is kept confidential by consulting 

person-to-person, so that only the appropriate Forest 

Service staff and Indian Tribe or descendent community 

retains documentation. This restriction of access to 

information will help keep reburial locations protected 

from future development or disturbance. The Agency must 

provide for the long-term security of this confidential 

information and ensure that the locational information is 

available during planning efforts.

Information about the location, character, or ownership of 

a sacred site can be kept confidential if such disclosure will 

risk or harm the site, impede the use of the sacred site, or 

cause a significant invasion of privacy. Agency and Tribal 

representatives should be aware that not disclosing a site 

location can also result in harm to the site, impede the use 

of a sacred site, or cause a significant invasion of privacy. 
6 Tribal Cultural and Heritage Cooperation Authority Technical Guide

Managers must balance the disclosure or confidentiality 

needs for the location and their partners, developing 

agreed-upon procedures, such as whether to depict sacred 

places on Geographic Information System (GIS) maps so 

that when a project is planned, or if unplanned wildland 

fires occur, appropriate measures for protection can be 

implemented.

Section 304 of NHPA and section 9 of ARPA, National 

Environmental Policy Act (NEPA), and section 3056 

of CHCA contain site protection provisions that allow 

sensitive cultural information to be withheld from the 

public and are supported by EO 13007. Additional 

information and guidance regarding confidentiality and the 

security of confidential information is provided in Chapter 

4—Prohibition on Disclosure (Confidentiality).

Consider that each individual reburial will require ongoing 

consultation with the affected Indian Tribe, clan, and 

family to develop a well-documented, comprehensive plan. 

Location and security considerations of a reburial site 

might include some of the following—

▪ Indian Tribes may desire to rebury repatriated remains 

and associated materials at the original burial location. 

As noted previously in the NHPA discussion, reburial at 

the original location has advantages for the Agency as 

well.

▪ Indian Tribes may choose alternative reburial locations 

as a result of consultation and a collaborative decision 

to select a location that is not proposed for exchange, 

mineral development, timber harvest, or other 

development.

▪ The Indian Tribe may determine that the reburial 

ceremony is to be completed by appropriate Tribe, clan, 

or family members without Forest Service presence.

▪ The Indian Tribe may determine that the reburial 

ceremony is to be completed by the Forest Service 

without a Tribal representative present.

Once a site is selected, complete the NHPA requirements 

and NEPA process. Utilize NEPA categorical exclusions as 

appropriate. Specifically, it is recommended that decision 

makers consider the use of the categorical exclusion for 

minor activities on “less than five acres” and as identified in 

the NEPA handbook. Cite this category as 36 CFR 220.6(e)

(3). Refer to FSH 1909.15, chapter 30—

(3) Approval, modification, or continuation of minor special

uses of NFS lands that require less than five contiguous 

acres of land. Examples include but are not limited to—

i. Approving the construction of a meteorological

sampling site;

ii. Approving the use of land for a one-time group

event;

iii. Approving the construction of temporary facilities

for filming of staged or natural events or studies 

of natural or cultural history;

iv. Approving the use of land for a 40-foot utility

corridor that crosses one mile of a national forest;

v. Approving the installation of a driveway, mailbox, 

or other facilities incidental to use of a residence;

vi. Approving an additional telecommunication use at

a site already used for such purposes;

vii. Approving the removal of mineral materials from

an existing community pit or common-use area; 

and

viii. Approving the continued use of land where such

use has not changed since authorized and no 

change in the physical environment or facilities 

are proposed.

As appropriate, Forest Service archaeologists and Tribal 

Relations Specialists may prepare the reburial site to 

specifications and procedural requirements as agreed to 

in consultations. Agency personnel may not be welcome 

during certain phases of site preparation. Consultation 

should include discussions about the various personnel 

to be involved. In some cases, Tribal members employed 

by the Agency can assist in the reburial. In any case in 

which reburial occurs on an archaeological site, the act 

of reburial must not adversely affect site deposits without 

prior evaluation and, if needed, mitigation; this should be 

covered under the normal NHPA section 106 process.

Tribal and Forest Service consultations should include the 

following additional considerations—

▪ The use of commemorative markers may or may not be

appropriate. A natural-looking surface at the reburial site 

may help to protect the site from further disturbance. 

The location of the reburial location should be fixed 

through Global Positioning System, or GPS, technology 

and photographed as a baseline for future monitoring 

activities.

▪ Subsequent site monitoring may be accomplished

by Forest Service archaeologists, Tribal Relations 

Specialists, and Law Enforcement Officers or with 

independent monitoring by family or clan members or 

by designated Tribal monitors.

Some reburial locations may require a formal security plan. 

Consider the following as appropriate for individual cases:

1. Methods used to cover the site (i.e., rip rap or rebar

grids under the surface and other physical protective 

measures). Consider potential weight or compression 

and other impacts of protective measures over time.

2. Surface rehabilitation that might include reseeding or

revegetation following reburial. Revegetation efforts 
Tribal Cultural and Heritage Cooperation Authority Technical Guide 7

may include floral deterrents to screen the reburial or 

discourage disturbance.

3. Physical access closures in sensitive areas.

4. Field trips with Tribal representatives and the Forest 

Service team to assist in developing the security plan.

5. Inclusion of Law Enforcement and Investigations staff 

that have technical expertise with remote monitoring 

(motion sensors, cameras, etc.) to participate in security 

planning.

6. Need for a written plan to formalize security measures

for continuity through changes in personnel and time.

7. Monitoring strategy to assess the effectiveness of the 

overall security plan through time.

8. Inclusion of Indian Tribal partners for monitoring 

through a site stewardship program or other formalized 

agreements.

Suggestions for Reburial of Remains 

Not Originating From Forest Service 

Lands

1. All requests are considered on a case-by-case basis.

Some reburials can be handled programmatically, 

but each of these cases is likely to require special 

considerations. Programmatic protocols may be 

appropriate in cases where several individuals, such as 

in the case of museum collections, are involved.

2. In resolving any ambiguities, refer to FSM 1563—

“Ensure that, when considering requests for reburial

of human remains and cultural items, Forest Service 

Line Officers consider the requirement to avoid, to the 

maximum extent practicable, adverse impacts to cultural 

items and human remains which are reburied on Forest 

Service lands.”

Line officers should uphold both the letter and the spirit 

of the CHCA by interpreting any ambiguity in a manner 

that furthers congressional intent to facilitate, and not 

to impede, reburial of these human remains and cultural 

items. A few things to consider include but are not 

limited to:

▪ Is the connection between the remains and the NFS

land identified for potential reburial reasonable?

▪ Is another location other than NFS land more

appropriate for the remains to be reburied?

▪ What are the relative risks and benefits (legally and

for relationships) in authorizing or not authorizing 

the reburial?

▪ Would reburying the remains on NFS land pose a 

risk to the remains?

3. Expenses associated with reburials are an important

discussion point. One consideration is whether the 

original removals had Federal financial assistance or 

whether a Federal agency permitted excavations or 

impacts causing the original removals. In some cases, 

it may be appropriate to investigate land ownership 

histories. The Forest Service may fund the entire event 

and all associated actions, but should examine other 

potential funding sources and explore Tribal interests 

and abilities to assist in defraying the expenses of the 

Forest Service agency.

4. Consider designating one or more “keepsafe” reburial

areas. This may simplify future management concerns 

about multiple protected “dots” all over the map.

5. Ask the Indian Tribe to assist in future monitoring and 

protection protocols. The case-specific monitoring 

protocol should be established in the case-specific 

MOU. Lacking a formal MOU, official letters from 

designated Tribal officials expressing the understanding 

with the Forest Service may suffice. Indian Tribes may 

also be willing to cover associated expenses.

6. If the Forest Service honors the request and decides to

use a standard MOU template, understand that the MOU 

template required by Grants & Applications has at least 

one provision that does not apply; provision L (Public 

Notification) must be removed. 

7. If the request is denied, consider offering assistance 

to resolve the request in an alternative manner. It is 

critical to maintain continuity and transparency with 

Forest Service Tribal partners for future collaborative 

efforts. Alternative resolution may be available through 

arrangements with other agencies, other Indian Tribes, 

or States.

8. Do not make promises you cannot keep or overpromise

on what you can do.

Sample Action Plan for the Reburial 

of Human Remains on National Forest 

System Lands

The following are recommended elements of an action plan. 

These elements may be incorporated into other memoranda 

or official correspondence guiding the conduct of a reburial.

Forest Service Land Managing Unit:

A. Documentation of reburial consultation:

1. The following Indian Tribes, clans, or family were 

notified and consulted.

2. Date and content of letter, phone calls to officials.

3. Date of government-to-government consultation(s).
8 Tribal Cultural and Heritage Cooperation Authority Technical Guide

B. Specific Tribal, clan, or family requests for reburial.

C. Reburial statement that includes assigned

responsibilities (who will do what, when, and how).

D. Security plan that includes assigned responsibilities

(who will do what, when, and how).

E. Signatures of consulting parties.

Forest Service Manual Direction for 

Reburial

The following sections are excerpted from the Forest 

Service Manual (FSM) at FSM 1500 - EXTERNAL 

RELATIONS, FSM 1563 - STATE, TRIBAL, COUNTY, 

AND LOCAL AGENCIES; PUBLIC AND PRIVATE 

ORGANIZATIONS, and they apply to repatriation and 

reburial of human remains and cultural items on National 

Forest System lands.

1563.04 - Responsibility

1563.04f - Director, Forest Service Office of Tribal 

Relations in Washington, DC

The Director of the Forest Service Office of Tribal 

Relations in Washington, DC, has the responsibility to:

... 

11. Coordinate regional responses to requests by Indian

Tribes or lineal descendants for reburial data essential 

to program budgeting and policy direction....

1563.04h - Regional Foresters, Station Directors, and 

the Area Director

Regional Foresters, Station Directors, and the Area Director 

have the responsibility to:

... 

10. Ensure appropriate repatriation of human remains,

associated funerary objects, unassociated funerary 

objects, sacred objects, and objects of cultural 

patrimony from National Forests under their 

jurisdiction.

11. Regional Foresters will determine whether to rebury

repatriated human remains and cultural items on 

NFS lands, consistent with uses on NFS land as 

determined necessary for management of the NFS. 

This responsibility may be delegated, in writing, to 

Line Officers with management responsibilities over 

the lands on which reburials are proposed.

1563.04i - Regional Tribal Relations Program Managers

The Regional Tribal Relations Program Managers have the 

responsibility to:

... 

7. Advise line and staff on their responsibilities to:

...

 d. Respond to tribal requests for reburial of human

remains in coordination with the Heritage Resources 

Program Manager.

... 

12. Coordinate and provide Agency staff work necessary 

for processing requests by Indian Tribes and lineal 

descendants for reburial of human remains and/or 

cultural items. Provide documentation, budget, and 

briefing materials necessary for management decisions 

and reporting. Initiate program and reburial activity 

reviews necessary to provide quality controls and tribal 

relations feedback. ...

... 

14. Conduct periodic reviews to ensure compliance

with the Forest Service reburial policy pursuant to 

requirements of the CHCA of 2008 (25 USC, chapter 

32A, section 3053).

1563.04j - Forest, Grassland, and Prairie Supervisors

Forest, Grassland, and Prairie Supervisors have the 

responsibility to:

9. Develop action plans in consultation with Tribes 

in accordance with the implementing regulations 

for NAGPRA (43 CFR 10.3) for discoveries of 

American Indian human remains pursuant to permitted 

excavations under the ARPA (see also FSH 1509.13).

10. Ensure that requests for reburial are addressed in

a timely manner. Undertake the following actions 

with requests for reburial of American Indian human 

remains and associated funerary objects on lands under 

their jurisdiction—

a. Ensure that all requests for reburial are reported

and coordinated with the Regional Tribal Relations 

Program Manager and Regional Heritage Resources 

Program Manager.

b. Recommend to the Regional Forester actions to

be taken on reburial requests by Indian Tribes or 

lineal descendants. A Forest Supervisor may make 

determinations regarding reburials if the Regional 

Forester delegates, in writing, that responsibility. 

c. When recommending that the Regional Forester

authorize reburials, consult with the lineal 

descendants or culturally affiliated Tribe(s) 

and develop, where desired by the Tribe(s), a 

Memorandum of Understanding that delineates 

the reburial process. This agreement may include 

procedures for reburial of human remains and 

associated funerary objects.
Tribal Cultural and Heritage Cooperation Authority Technical Guide 9

d. Inform appropriate law enforcement personnel of

reburial activities in order to endeavor to protect reburial 

sites through monitoring and surveillance activities.

e. Comply with FOIA Exemption 3, which covers 

information specifically exempted from disclosure 

by statute, to prevent the unauthorized disclosure of 

information regarding reburial sites, including the 

quantity and identity of human remains and cultural 

items and location of sites.

f. Avoid adverse impacts to human remains and 

cultural items, to the maximum extent practicable.

11. Develop a section of the action plan in consultation

with local Tribes (25 USC 3002(d)), for post-1990 

ground-disturbing projects that deals with inadvertent 

discoveries of Native American remains and objects.

1563.3 - Reburial of American Indian and Alaska Native 

Ancestral Remains and Cultural Items

Tribal requests for reburial of ancestral human remains and 

cultural items are, in general, closely tied to repatriations 

of those remains and objects by the Forest Service under 

the terms of NAGPRA. Guidance is provided, however, to 

ensure that these two actions (repatriation and reburial) are 

treated as separate, although often related, processes.

1. Repatriation. The Forest Service provides for Indian 

tribal rights of ownership or control regarding Native 

American human remains and cultural items, and the 

Agency has already been repatriating such remains 

and items to the affected Indian Tribe(s) or lineal 

descendent(s) under the terms of NAGPRA (25 USC 

Chapter 32). The NAGPRA does not specifically 

address reburial. Repatriations of American Indian 

human remains and funerary remains, as well as other 

objects defined in NAGPRA, are carried out under the 

Forest Service’s statutory responsibilities. In general, 

guidance regarding the Forest Service responsibilities 

regarding repatriation of Native American human 

remains and cultural items are set forth in the Heritage 

Program manual at https://www.fs.usda.gov/Internet/

FSE_DOCUMENTS/fseprd488845.pdf.

2. Reburial. American Indians and Alaska Natives have 

expressed an interest in reburying the repatriated 

remains and cultural items of their ancestors on NFS 

lands. Some Forest Service regions and forests have 

developed procedures for reburials and have approved 

reburial of American Indian and Alaska Native human 

remains and associated funerary objects on NFS lands. 

Because of concerns over consistency within the 

Agency and because NAGPRA does not specifically 

address reburial, national policy and direction have 

been developed regarding the reburial of American 

Indian and Alaska Native human remains and cultural 

items on NFS lands.

Reburial of human remains or cultural items in the 

possession of the Indian Tribe or lineal descendant that 

have been disinterred from NFS land or adjacent sites may 

be carried out as a discretionary action within the Agency’s 

administrative authorities pursuant to FSM 1561.01d

(Cooperative Land Management and Planning with Indian 

Tribes).

FSM 1563.31 - General Reburial Considerations

1. The Forest Service retains the discretion to decide

whether to authorize reburial of American Indian and 

Alaska Native human remains and cultural items on 

NFS lands, and under what conditions reburials will 

occur. 

2. Respect is the foundation for all decisions regarding

reburial of American Indian and Alaska Native human 

remains and cultural items on NFS lands, and Forest 

Service Officials are expected to be sensitive to the 

diversity of tribal cultural beliefs.

3. All activities and documentation related to reburial of

American Indian and Alaska Native human remains 

and cultural items must be kept confidential to the 

extent authorized by law. 

4. Prior to authorizing reburial on NFS lands, the Forest

Service shall ensure that the lineal descendant(s) or 

culturally affiliated Tribe(s) has legal ownership or 

custody of the remains, and that the requirements of 

NAGPRA have been met.

5. When the Forest Service authorizes reburial on

NFS lands, including wilderness and other special 

designation areas, the Agency shall attempt to 

accommodate all aspects of lineal descendants and 

culturally affiliated Tribe(s) requests. Reburials should 

be at or as close as practicable to the burial sites from 

which those American Indian and Alaska Native human 

remains and cultural items were originally recovered. 

When authorizing reburials, the FS shall comply with 

NEPA, NHPA, and other applicable laws.

6. For post-1990 excavations or inadvertent discoveries

(section 3 of NAGPRA) related to a FS funded, 

permitted, or licensed project, costs associated with 

reburial, if authorized, will be considered part of the 

project costs of the project component.

7. Lineal descendants and/or culturally affiliated Tribal 

representatives shall be given opportunities to be 

present and conduct ceremonies at reburial(s) and to 

be allowed future access to these sites for cultural and 

spiritual purposes, to the extent permitted by law.

8. In the case of human remains and cultural items

recovered from adjacent sites, confirm with the Indian 

Tribe or lineal descendant in possession of the human 

remains or cultural items that all applicable State laws 
10 Tribal Cultural and Heritage Cooperation Authority Technical Guide

and regulations regarding ownership or custody have 

been complied with prior to authorization for reburial 

on NFS lands.

9. Reburial locations will not constitute the establishment

of a new cemetery. Although the Forest Service may 

authorize the use of NFS land for the reburial of 

human remains or cultural items as described in 25 

USC 3053, Indian Tribes and lineal descendants may 

consider a reburial site to be a sacred site (as defined 

by EO 13007) and to have traditional and religious 

significance.

10. Ensure that, when considering requests for reburial

of human remains and cultural items, Forest Service 

Line Officers consider the requirement to avoid, to 

the maximum extent practicable, adverse impacts to 

cultural items and human remains which are reburied 

on Forest Service lands.

Additional information relating to reburial is located in 

FSH 1509.13.20 and FSM 2364.03(h).

FSM 1563.32 - Reviews for Repatriations and Reburials 

The Regional Tribal Relations Program Manager shall 

conduct periodic reviews to ensure compliance with the FS 

reburial policy pursuant to requirements of the CHCA (25 

USC, chapter 32A section 3053). Each review must include 

the regional heritage resources program manager and other 

FS programs, as appropriate. Copies of each review must 

be provided to the Regional Forester and the Director of the 

FS Office of Tribal Relations in Washington, DC.

The Regional Tribal Relations Program Manager shall also 

assist the Heritage Program in conducting periodic reviews 

on compliance with the requirements of NAGPRA.
Tribal Cultural and Heritage Cooperation Authority Technical Guide 11

Chapter 2—Temporary Closure for Traditional and 

Cultural Purposes: 25 U.S. Code3054

Purpose

The purpose of this chapter of the Cultural and Heritage 

Cooperation Authority (CHCA) technical guide is to 

provide background information and best practices for 

the temporary closure of National Forest System (NFS) 

lands for the privacy of Tribal activities for traditional and 

cultural purposes.

Background and Business Need

The CHCA of the Food, Conservation, and Energy Act of 

2008, codified at 25 U.S. Code (USC), chapter 32A authorizes 

the Secretary to temporarily close NFS lands for the privacy 

of Tribal activities for traditional and cultural purposes.

▪ The CHCA at section 3054 first states that: “the 

Secretary shall ensure access to National Forest System 

land by Indians for traditional and cultural purposes ... 

in recognition of the historic use by Indians of National 

Forest System land.” [25 USC 3054(a), emphasis added]

▪ The next section provides the authority for closing land

from public access: “Upon the approval by the Secretary 

of a request from an Indian tribe, the Secretary may 

temporarily close from public access specifically 

identified National Forest System land to protect the 

privacy of tribal activities for traditional and cultural 

purposes.” [25 USC 3054(b)(1)]

▪ The law then sets limitations on the closure: “A closure 

of National Forest System land under paragraph 

(1) shall affect the smallest practicable area for 

the minimum period necessary for activities of the 

applicable Indian tribe.” [25 USC 3054(b)(2)]

▪ Finally, this law is tied directly back to the American 

Indian Religious Freedom Act (AIRFA): “Access by 

Indian tribes to National Forest System land under 

this subsection shall be consistent with the purposes of 

Public Law 95–341 (commonly known as the American 

Indian Religious Freedom Act; 42 USC 1996).” [25 USC 

3054(b)(3)]

On January 19, 2011, the Forest Service, through USDA 

Natural Resources and Environment, published in the 

Federal Register a Direct Final Rule that directly reflects 

the CHCA, adding the following to the list of Prohibitions 

in Areas Designated by Order (36 Code of Federal 

Regulations (CFR) 261.53) Special Closures—

g) “The privacy of tribal activities for traditional and

cultural purposes.Closure to protect the privacy of 

tribal activities for traditional and cultural purposes 

must be requested by an Indian tribe; is subject to 

approval by the Forest Service; shall be temporary; 

and shall affect the smallest practicable area for 

the minimum period necessary for activities of the 

requesting Indian tribe.”

Key Concepts

Patience and respect must be used at every step in the 

process. Tribal cultural practices and social norms can be 

vastly different from those of Forest Service employees, 

and this may be apparent in the initial request for a 

temporary closure for a traditional and cultural purpose. 

The request could include terminology that may seem 

vague from the Federal viewpoint, but to the Tribe, it is 

respectfully accurate without being too specific, most 

notably when spiritual concerns apply to the request.

During the engagement process, it can be helpful to focus 

on the offered details of the initial request and work with 

the Tribal partner to develop and plan the logistical context 

of the request. To be clear, it is not the Forest Service’s role 

to determine or dictate the exact circumstances by which a 

Tribal cultural practice may be observed; rather, the Forest 

Service acts as an agent of the Federal trust responsibility 

and must accommodate Tribes when and where it can as 

allowable under Federal law. The information that follows 

provides a blueprint of actions to take when a request is 

received.

Issuance of Closure Orders Pursuant to 

36 CFR 261.53(g)

1. An administrative record shall be initiated and

maintained for each request for temporary closure of 

NFS lands for traditional and cultural purposes.

Forests or prairies or grasslands shall maintain strict

confidentiality of the administrative record. Executive 

Order (EO) 13007 (Executive policy for Sacred 

Sites) clearly states, “Where appropriate, agencies 

shall maintain confidentiality.” Culturally sensitive 

information is protected from disclosure by certain 
12 Tribal Cultural and Heritage Cooperation Authority Technical Guide

laws and regulations. For example, information about 

locations of certain archaeological or burial sites can 

be protected through the National Historic Preservation 

Act, Cave Resource Protection Act (CRPA [16 USC 

63]), Archaeological Resources Protection Act, and 

NAGPRA. Further, CHCA section 3056 can also 

provide Indian Tribes with protection from disclosure 

under the Freedom of Information Act. Protection under 

the CHCA extends to information regarding the identity, 

use, or specific location in the NFS of a site or resource 

used for traditional or cultural purposes by an Indian 

Tribe or any cultural items not covered by section 3053 

(reburial) of the CHCA.

2. Upon receipt of a request for temporary closure of NFS

lands for traditional and cultural purposes, the forest 

or prairie or grassland should immediately evaluate the 

request to determine the following—

a. Requestor is an authorized agent acting in an

official capacity on behalf of a federally recognized 

Tribal government, department, or subdivision; an 

intertribal council; or commission serving a group of 

federally recognized Indian Tribes.

b. Includes specific dates, times, and location.

c. Affects the smallest practicable area.

d. Extends no longer than the minimum period

necessary.

e. Includes affirmation from the impacted Indian

Tribe that the temporary closure is for traditional 

and cultural purposes. This does NOT mean that 

forest or prairie or grassland supervisors should 

attempt to evaluate or make their own determination 

of “traditional and cultural purpose.” Rather, they 

should ensure that the Indian Tribe affirms that the 

closure is within the meaning of traditional and 

cultural purpose.

f. Identify any specific information the Indian

Tribe deems sensitive, requiring protection from 

disclosure.

Note: Submission of requests presents line officers with 

the opportunity to engage in direct consultation with 

local Tribal leadership or designated Tribal agents; aim to 

maximize these interactions by building a strong working 

relationship. Consider that Tribes appreciate in-person 

engagement. It may be appropriate to visit the proposed 

site with the Tribal representative(s). Deference should be 

given to the Indian Tribe’s ceremonial calendar as well as 

the cultural significance of the site itself. Suggested points 

to clarify with the Indian Tribe may include—

▪ Precisely where the gathering will take place (and visit

that location).

▪ Explain that specific details about the ceremony itself

are not necessary or required for the Forest Service to 

evaluate the request. Baseline logistical information is 

necessary, however, to properly plan out the scope of the 

request.

▪ How many people may participate?

▪ Will food be served to participants?

▪ Will the proponent Indian Tribe cook on site?

▪ Do the elders have special needs for comfort?

▪ Will some sleep or camp onsite?

▪ What accommodations is the Tribe making for general 

participant’s comfort?

▪ What sort of cleanup is necessary and how does the

Tribe plan to clean the site?

▪ Where will participants use the bathroom?

▪ Attempt to gather as much logistical information

through this dialogue to prepare the requesting “terms 

and conditions” in a bilateral agreement. Be patient.

▪ Introduce a dialogue about the other facets of the

gathering related to smaller ceremonies for traditional 

practitioners.

▪ Ask if a ceremonial fire will be needed and, if so, the

preferred location of this fire.

▪ Ask if you can be shown a general location that

requires use by a traditional practitioner(s) for smaller 

ceremonies.

▪ Ask what kind of privacy is needed for the ceremony.

▪ Schedule a followup meeting if needed, especially if an

agreement is to be executed.

3. Provisions for temporary closure may be conditioned or

denied for reasons including—

a. Protecting public health and safety.

b. Preventing interference with Forest Service and/

or commercial operations. Complying with Federal 

laws and regulations.

c. Ensuring the sustainability of a species or biological

community.

d. Otherwise protecting NFS land and resources.

Denials must be well documented and clearly 

explained to the requesting Indian Tribe.

4. Group use permits and other instruments—

Tribal uses are not special uses. Tribal uses are the 

exercise of sovereign rights and interests, on the 

NFS lands, as enumerated in treaties and statutes 

recognizing and protecting those rights and interests. 
Tribal Cultural and Heritage Cooperation Authority Technical Guide 13

These rights and interests, although recognized in 

treaties and statutes, are not derived therefrom. They 

are preexisting rights stemming from the Indian Tribe’s 

inherent sovereignty. Individual Tribal members, or selfidentifying Native Americans, who are not delegated 

representatives of a federally recognized Indian Tribe 

are not eligible to request a closure under the CHCA; 

these individuals must go through the procedures 

available to the general public.

It is the policy of the United States to honor and respect

the sovereignty of the individual Indian Tribe, including 

its sovereign rights and immunities. This is the basis of 

our government-to-government relationship. Permits are 

not bilateral in nature and are, therefore, often perceived 

as an affront to Tribal sovereignty. In general, when 

the forest or prairie or grassland supervisor desires the 

cooperation of the Indian Tribe for specific issues of 

site management, parking, fire prevention, sanitation, 

and so on, he or she should engage the Indian Tribe in 

a bilateral agreement (Memorandum of Understanding 

or other letter of agreement) which stipulates the 

expectations of each party. Such agreements should not 

attempt to waive the sovereign rights or immunities of 

the respective Indian Tribe(s) or be interpreted to do so.

The CHCA provides authority for the proposed Tribal 

activity, regardless of the number of attendees. Permits 

are therefore not required. If a bilateral agreement is 

desired, each provision of such agreement is negotiated 

in good faith between the parties. Sample agreements 

and Grants and Agreements (G&A) templates seldom 

serve the government-to-government relationship. 

Bilateral agreements with Indian Tribes do not require 

G&A approval. Your G&A Specialist may provide 

valuable input in crafting such agreements, however.

5. In general, forests or prairies or grasslands shall

follow the procedures outlined in FSH 5309.11, 

chapter 32—Issuing Orders under 36, Code of Federal 

Regulations, Part 261, Subpart B. Coordination with the 

Office of General Counsel and Law Enforcement and 

Investigations will be maintained consistent with all 

closure orders.

Due to the unique nature of orders issued under 36 

CFR 261, certain exceptions to standard procedures are 

recommended as follows—

32.11 – Exemptions

Only the following exemptions should be considered—

1. Persons with a permit specifically authorizing the

otherwise prohibited act or omission.

4. Any Federal, State, or local officer, or member of an 

organized rescue or firefighting force in the performance 

of an official duty.

6. Any other person meeting exemption requirements

specified in the order.

Exemptions considered under this criterion should specify 

by name the requesting federally recognized Indian Tribe 

and that Indian Tribe’s enrolled members or the names of 

multiple Indian Tribes and their enrolled members. If the 

event is an intertribal activity, the name of the intertribal 

council or commission may be used.

32.2 – EXHIBIT 02, Content of Assessment of Need and 

Enforcement Plan

Item 3, Enforcement Plan. Enforcement Plans should be 

amended to caution against disclosing to the affected public 

the exact nature of the activity or that it is associated with 

a particular Indian Tribe. This would include onsite posting 

requirements. American Indian traditional and cultural 

activities and locations of such activities are protected from 

disclosure to the public by law. Also, the enforcement plan 

may consider the use, by the Indian Tribe, of tribal police 

officers or commissioned tribal game wardens to deal with 

any internal conduct problems.

32.21 – Order Case Files

Case files should be flagged as sensitive, subject to 

probable FOIA exemption under provisions of the Food, 

Conservation, and Energy Act of 2008. Case files should 

make direct reference to section 8104 of the 2008 Farm Bill 

and the new 36 CFR 261.53. (See also item 1, page 28.)

32.24 – Civil Rights Impact Analysis

A Civil Rights Impact Analysis (CRIA) must be completed 

when required per FSM 1730 and FSH 1709.11. The 

CRIA shall reference statutory requirements under AIRFA, 

Religious Freedom Restoration Act, and the CHCA.

32.25 – Assessment of Need and Enforcement Plan

The Assessment of Need shall reference statutory 

requirements under AIRFA, Religious Freedom Restoration 

Act, and the CHCA.
14 Tribal Cultural and Heritage Cooperation Authority Technical Guide

32.3 – Posting of Orders

Due to the confidentiality of certain culturally sensitive 

information, posting requirements must be carefully 

considered. The two-prong requirements for posting 36

CFR 261.51 are—

(a) Placing a copy of the order imposing each prohibition in

the offices of the Forest Supervisor and District Ranger, 

or equivalent officer who have jurisdiction over the 

lands affected by the order, and

(b) Displaying each prohibition imposed by an order in

such locations and manner as to reasonably bring the 

prohibition to the attention of the public.

When placing a copy of the order imposing the prohibition 

in Forest Service offices, the Forest or Prairie or Grassland 

shall redact any information from the order that the Indian 

Tribe considers to be sensitive. Maps of the affected area 

will not be posted unless authorized by the Indian Tribe.

When posting the area at locations and in a manner to 

reasonably bring the prohibition to the attention of the 

public, post only notices that read, “Temporarily Closed to 

Public Entry.” Units may add to the notice citation of 36 

CFR 261.53.g, “For more information call ....” Only Forest 

employees familiar with Government policies protecting 

culturally sensitive information should respond to public 

inquiries. 
Tribal Cultural and Heritage Cooperation Authority Technical Guide 15

Chapter 3—Forest Products for Traditional and 

Cultural Purposes:25 U.S. Code 3055

Purpose

The Forest Service receives many requests every year from 

Indian Tribes and individual Native Americans to acquire 

forest products from National Forests and Grasslands. 

This chapter of the Cultural and Heritage Cooperation 

Authority (CHCA) technical guide outlines the authorities 

and mechanisms by which managers may implement their 

authority to provide—or not to provide—forest products. 

Forest Service Manual (FSM) 1563, Forest Service 

Handbook (FSH) 1509.13, FSH 2409.18, and Forest 

Service regulations at 36 Code of Federal Regulations 

(CFR) 223.15 include policy and guidance related to the 

implementation of CHCA section 3055: Forest Products 

for Traditional and Cultural Purposes. This chapter has 

been developed to help managers apply this authority. 

Additionally, this chapter covers requests made by Indian 

Tribes under treaties or the general free use authority 

(16 U.S. Code (USC), section 477). Individual Native 

Americans may also acquire forest products under the 

general free use authority. Information related to responding 

to these requests may also be found in this chapter.

Background and Business Need

Section 3055 of the CHCA gives the Secretary of 

Agriculture the authority to provide trees, portions of 

trees, or forest products to Indian Tribes free of charge 

for traditional and cultural purposes. The uses must be 

noncommercial. Section 3055 has been further implemented 

at 36 CFR 223.15 and in FSH 2409.18. This authority can 

be used to grant trees, portions of trees, or forest products 

to federally recognized Indian Tribes for a wide variety of 

noncommercial uses that serve to promote traditional native 

culture, activities, and practices, and may be used where 

treaty-reserved rights may be absent or ambiguous.

Key Concepts—Definitions

When a treaty reserves or grants lands to an Indian Tribe, 

Tribal ownership generally includes full hunting, fishing, 

and gathering rights on those lands. These treaty rights are 

property rights that cannot be taken without compensation. 

Additionally, Indian Tribes frequently entered into treaties 

that expressly reserved hunting, fishing, and gathering 

rights on specified lands outside reservation borders. 

Treaties reserving hunting, fishing, and gathering rights 

over previously owned Tribal lands do not constitute a 

“grants of rights to the Indians, but a grant of rights from 

them—a reservation of those not granted.”2

 Treaty-reserved 

hunting, fishing, and gathering rights on off-reservation 

lands are akin to easements running with the burdened 

lands and include easements to access hunting, fishing, 

and gathering sites. These treaty-reserved easements, like 

the treaty-reserved hunting, fishing, and gathering rights 

themselves, are property rights within the meaning of the 

Fifth Amendment and cannot be taken by Congress without 

compensation.3

Note that these rights are retained by the Indian Tribe(s) 

and are not given by the Government. Few treaties that 

reserved off-reservation hunting, fishing, and gathering 

rights specifically enumerated every possible right to 

hunt, fish, and gather. Nonetheless, in keeping with the 

Indian law canons of construction, courts have interpreted 

treaty language reserving rights to hunt, fish, or gather 

as reserving to the Indian Tribe all hunting, fishing, and 

gathering rights, subject only to specific treaty limitation. 

Further, treaty-reserved hunting, fishing, and gathering 

rights extend to the harvest of all species currently existing 

in the Indian Tribes’ reserved harvesting ground, subject 

only to specific treaty limitation. Thus, for example, Tribal 

rights to take fish include both natural and hatchery-bred 

fish.4 The application of treaty rights may include the 

commercial use of these trust resources.

It is the policy of the United States to honor these treatyreserved rights, and it is therefore of great importance that 

line officers know the treaties affecting their forests and 

the Indian Tribes whose rights apply to the ceded lands of 

that forest. No additional statutory authority is required 

for the transfer of trees, timber, and forest products. Treaty 

rights are applied only to (1) the signatory Indian Tribes to 

the treaty; and (2) lands ceded to the United States in that 

treaty.

2 United States v. Winans, 198 U.S. 371, 381 (1905). 3

 Cohen’s Handbook of Federal Indian Law, 18.02, page 1156 (Nell Jessup Newton, ed., 2012)

4

 Ibid at 18.04[2][a], page 1164.
16 Tribal Cultural and Heritage Cooperation Authority Technical Guide

Key Concepts—Law and Agency Policy

Excerpts from pertinent authorities are provided below 

regarding free use for federally recognized Indian Tribes 

under the CHCA, and for requests made by Indian Tribes 

under the general free use authorities.

Cultural and Heritage Cooperation Authority: As noted 

above 25 USC 3055 authority can be used to grant trees, 

portions of trees, or forest products to federally recognized 

Indian Tribes for a wide variety of noncommercial uses that 

serve to promote traditional native culture, activities, and 

practices, and may be used where treaty-reserved rights 

may be absent or ambiguous.

Forest Service implementing regulation stemming from 

that law and section of the U.S. Code is under 36 CFR 

223.15. Regional Foresters or designated Forest Officers 

may, at their discretion, provide trees, portions of trees, or 

forest products to federally recognized Indian Tribes free 

of charge for traditional and cultural purposes provided 

that (1) the trees, portions of trees, or forest products are 

provided to tribal officials on behalf of an Indian Tribe for 

traditional and cultural purposes; and (2) the trees, portions 

of trees, or forest products will not be used for commercial 

purposes. 

The FSH also provides direction for Tribal requests under 

section 3055.

General free use authorities: provides discretionary 

authority to the Secretary of Agriculture to permit, under 

regulations prescribed by him or her, the use of timber 

and stone found upon national forests, by bona fide 

settlers, miners, residents, and prospectors, free-of-charge, 

for minerals, for firewood, fencing, buildings, mining, 

prospecting, and other domestic purposes. Although not 

specified in, this authority may provide a clear line of 

authority for granting timber on National Forest System 

lands to federally recognized Indian Tribes for community, 

residential, and other domestic purposes.

General provisions for Forest Service free use authorities 

for trees, portions of trees, or forest products are located 

under the 36 CFR Part 223 subpart A—

▪ Section 223.5 provides the scope of free use granted to 

individuals and includes free use timber for domestic 

purposes.

▪ Section 223.6 (Cutting and Removal of Timber in 

Free-Use Areas) provides for cutting and removing, for 

domestic purposes, any dead timber or any green timber 

previously marked or designated by forest officers.5

▪ Section 223.8 describes which Forest Service officers 

may be delegated authority to grant (general) free use 

to individuals. Note: Reference 36 CFR 223.15 for a 

description of which Forest Service officers may be 

delegated authority to grant tribal requests made under 

section 3055 of the Cultural and Heritage Cooperation 

Authority. 

Forest Service Manual 2400—Timber Management

contains additional Forest Service policy regarding 

delegations of authority for free use. (Reference FSM 2404 

and FSM 2462.)

Applying Free-Use Authorities

The CHCA authorizes grant of trees, portions of trees, or 

forest products to federally recognized Indian Tribes for 

a wide variety of noncommercial uses and “traditional 

and cultural purposes.” Under the Act, definition of the 

term “traditional and cultural purpose” with respect to 

a definable use, area, or practice, means that the use, 

area, or practice is identified by an Indian Tribe—not the 

Forest Service—as traditional or cultural because of the 

long-established significance or ceremonial nature of the 

use, area, or practice to the Indian Tribe. Additionally, for 

requests made under 223.15(d)—

▪ There are no limitations on the number of requests made

by Indian Tribes.

▪ There are no limitations on the amount of trees, portions

of trees, or forest products that may be requested by 

Indian Tribes.

▪ There are limitations regarding who may grant the request.

Pursuant to 36 CFR 223.8, and in consideration of the 

Government’s treaty and trust obligations to Indian Tribes, 

all forest supervisors have authority to grant requests for 

trees, portions of trees, or forest products to federally 

recognized Indian Tribe. Forest supervisors may redelegate 

this authority to district rangers and other forest officers 

in an amount not to exceed $200 per year. Regional 

foresters may approve requests exceeding $5,000. Amounts 

exceeding $10,000 require prior review by the Chief.

Agency line officers and managers (who have been 

authorized by name through official Forest Service 

correspondence) are authorized by 36 CFR 223.15(e) to 

provide trees, portions of trees, and forest products under 

this section subject to the following limitations—

(1) District rangers and forest officers may provide

material not exceeding $25,000 in value in any one 

fiscal year to an Indian Tribe.

(2) Forest supervisors may provide material not exceeding

$50,000 in value in any one fiscal year to an Indian 

Tribe.

5

 This authority provides the basis for the Eastern Region’s provision of timber to MOU signatory Indian Tribes (see Great Lakes Indian Fish & 

Wildlife Commission MOU) for domestic purposes that do not meet the 25 USC 3052 definition of traditional and cultural purpose.
Tribal Cultural and Heritage Cooperation Authority Technical Guide 17

(3) Regional foresters may provide material not exceeding

$100,000 in value in any one fiscal year to an Indian 

Tribe.

(4) The Chief of the Forest Service may provide material

exceeding $100,000 in value to an Indian Tribe.

As explicitly stated in 71 Federal Register (FR) 523-524 

(dated January 4, 2006), the delegation of authority 

limitations are “per year per individual,” and the Federal 

Register notice remains in effect.

Note the following guidelines and/or considerations when 

processing requests made by federally recognized Indian 

Tribes under the CHCA—

Statutory:

▪ Requests for trees, portions of trees, or forest products

for noncommercial traditional and cultural purposes 

may be granted to any federally recognized Indian 

Tribe, under section 3055 authority (and the Forest 

Service regulation under 36 CFR 223.15), irrespective 

of treaty reserved rights.

▪ Ensure that each requesting Indian Tribe is federally 

recognized. (Refer to the current “Tribal Entities List 

“of federally recognized Indian Tribes maintained by the 

Bureau of Indian Affairs per 25 USC 479a-1.)

▪ Implementation of provisions of CHCA and 

implementing regulations at 36 CFR 223.15 are based 

solely on the trust obligations of the United States and 

the unique political relationship that exists between the 

United States and Indian Tribes.

▪ Requests for trees and forest products (under section

3055) by federally recognized Indian Tribes may be 

conditioned or denied for reasons identified in 36 CFR 

223.15(f) (also shown under FSH 2409.18-82.53). These 

are currently the only reasons by which a line officer 

may deny a request under the CHCA.

▪ Regional foresters, forest supervisors, and district

rangers will ensure that all decisions made under 25 

USC 3055 comply with National Forest Management 

Act (NFMA), relevant land management plans, the 

National Environmental Policy Act, the Endangered 

Species Act, and all other applicable laws and 

regulations and that they are subject to Tribal treaty and 

other reserved rights and the savings provisions of the 

CHCA (35 USC 3057(b). (Refer to 36 CFR 223.15(g).)

▪ Regional foresters or designated forest officers must

document all decisions made under 36 CFR 223.15. 

(Refer to FSH 2409.18-82.54(3).)

Guidance:

▪ Forest supervisors and district rangers should make

every effort to accommodate any reasonable request(s) 

made by a federally recognized Indian Tribe for trees, 

portions of trees, or forest products for noncommercial 

traditional and cultural purposes.

▪ Requests may be granted by permit (FS-2400-8 Forest

Products Free Use Permit), bilateral agreement, or other 

letter of agreement.

▪ In some regions, all timber and forest products granted

free of charge to federally recognized Indian Tribes 

under the CHCA are accounted for in the Timber 

Management Information System (TIM) using the 

FS-2400-8 permit record. If the authorization is an 

MOU or other bilateral agreement, the actual permit 

will be disposed of per Forest Service accountability 

requirements (FSH 2409.18, 54). Each permit record 

shall identify itself by notation as Non-Commercial 

Tribal Free Use for Traditional and Cultural Purposes. 

(Additional documentation such as a letter or other 

agreement may be necessary on a case-by-case basis.)

Tribal uses should not be confused with special uses 

or other permitted uses. Tribal uses are the exercise of 

sovereign rights and interests on the National Forest System 

lands, as enumerated in treaties and statutes recognizing 

and protecting those rights and interests. These rights and 

interests, although recognized in treaties and statutes, 

are not derived from them. They are preexisting rights 

stemming from the Indian Tribe’s inherent sovereignty.

It is the policy of the United States to honor and respect 

the sovereignty of the individual Indian Tribe, including 

its sovereign rights and immunities. This is the basis of our 

government-to-government relationship. Permits are not 

bilateral in nature and are therefore often perceived as an 

affront to Tribal sovereignty. In general, when the forest 

or prairie supervisor desires the cooperation of the Indian 

Tribe for specific issues of site management, parking, fire 

prevention, sanitation, and other operating criteria, he or 

she should engage the Indian Tribe in a bilateral agreement 

(MOU or other letter of agreement that stipulates the 

expectations of each party). Such agreements should not 

attempt to waive the sovereign rights or immunities of the 

respective Indian Tribe(s).

The CHCA carries its own unique authority to provide 

for most proposed Tribal activities, including the use of 

national forest trees, timber, and forest products. This 

means that permits are not required. If a bilateral agreement 

is desired, each provision of such agreement is negotiated 

in good faith between the parties. “Canned” agreements 

and Grants & Agreements (G&A) templates seldom serve 

the government-to-government relationship. Bilateral 

agreements with Indian Tribes do not require G&A 

approval. Your G&A Specialist may provide valuable input 

in crafting such agreements, however.
18 Tribal Cultural and Heritage Cooperation Authority Technical Guide

Chapter 4—Prohibition on Disclosure 

(Confidentiality): 25 U.S. Code 3056

Purpose

The purpose of this chapter of the Tribal Cultural and 

Heritage Cooperation Authority (CHCA) technical guide 

is to provide information to Agency personnel about 

the available authorities and protocols for protecting 

information provided to the Forest Service by Indian Tribes 

regarding traditional and cultural purposes, traditional 

knowledge, and sacred sites (Tribal information). Although 

the legal mandate to share information under the Freedom 

of Information Act (FOIA) is compelling, exemptions to 

such sharing further mandate the protection of some Tribal 

information. In particular, CHCA provides unique authority 

to the Forest Service to protect traditional and cultural 

resources and information, as well as reburials. Although 

this authority is codified in Title 25 of the U.S. Code, 

which governs Indian affairs within the U.S. Department 

of the Interior, the CHCA specifically designates the Forest 

Service and the Secretary of Agriculture as responsible 

parties in implementing the provisions of the statute.

Background and Business Need

Across the country, whether on a formal basis through 

consultation or more operationally during collaborative 

project design and implementation, the Forest Service is 

engaged in activities with Indian Tribes through which 

Tribes might provide culturally sensitive information. In 

particular, the Forest Service might receive information 

regarding sacred sites or traditional and cultural practices 

that may potentially be impacted by agency activities. 

Sacred sites are defined as—

“any specific, discrete, narrowly delineated location 

on Federal land that is identified by an Indian Tribe, 

or Indian individual determined to be an appropriately 

authoritative representative of an Indian religion, as 

sacred by virtue of its established religious significance 

to, or ceremonial use by, an Indian religion; 

provided that the Tribe or appropriately authoritative 

representative of an Indian religion has informed the 

Agency of the existence of such a site.” (Indian sacred 

sites, Executive Order (EO) No. 13007, 61 Fed. Reg. 

26771 [May 29, 1996]).

The USDA Sacred Sites report (Report to the Secretary of 

Agriculture—USDA Policy and Procedures Review and 

Recommendations: Indian Sacred Sites [December 2012]) 

expands on this definition within the concept of “sacred 

places.” A sacred place is any specific location on National 

Forest System land, whether site, feature, or landscape, that 

is identified by an Indian Tribe, or the religious societies, 

groups, clans, or practitioners of an Indian Tribe, as having 

historically important spiritual and cultural significance 

to that entity, greater than the surrounding area itself. 

Sacred places may include but are not limited to geological 

features, bodies of water, burial places, traditional cultural 

places, biological communities, stone and earth structures, 

and cultural landscapes uniquely connecting historically 

important cultural sites, or features in any manner 

meaningful to the identifying Tribe.

As Heritage Program staff has aptly noted—

“The character of a sacred site is composed of many 

components. Most line officers and program managers 

are familiar with the concept of managing a place 

for specified outcomes. Wilderness is managed in a 

way that provides people opportunities for solitude 

and introspection, while developed campgrounds 

are managed to provide families opportunities 

to experience the outdoors, socialize, and build 

interpersonal bonds. It is the characteristic of the 

setting, created by nature and management actions 

which provide the opportunities and resulting human 

benefits. The character of a sacred site, as defined by a 

Tribe or authoritative representatives of an American 

Indian/Alaska Native religion, is also influenced 

by management actions affecting the potential for 

beneficial outcomes. It is most important for the line 

officer to understand what qualities define the character 

of a sacred site so management actions can be used to 

protect it.”6

Sacred sites are identified by an Indian Tribe or individual 

Indian practitioner and not the Agency. The same is true of 

traditional and cultural purposes. The CHCA (25 U.S. Code 

[USC], chapter 32A, section 3052 (8)) defines the term 

“traditional and cultural purpose,” as—

6

 “Heritage Program Guide for Sacred Sites as Defined by Executive Order 13007 and the National Historic Preservation Act, a Compendium of the April, 

2013 meeting of the Forest Service in Albuquerque, New Mexico” (Forest Service draft document, 2013).
Tribal Cultural and Heritage Cooperation Authority Technical Guide 19

“...with respect to a definable use, area, or practice, 

means that the use, area, or practice is identified by an 

Indian Tribe as traditional or cultural because of the 

long-established significance or ceremonial nature of 

the use, area, or practice to the Indian Tribe.” 

The Agency may be able to better protect sacred sites and 

other culturally important resources or to better inform land 

planning, research, or management decisions if it had more 

information about site locations or traditional knowledge. 

For many reasons, however—practical, cultural, religious, 

or political—Indian Tribes may be reluctant to share 

information with Federal agencies and risk making it 

public.

During the listening sessions and the Tribal consultations 

the Forest Service conducted while developing the USDA 

Sacred Sites report, the Agency heard directly from Tribes 

about their significant concerns regarding the Agency’s 

ability to protect confidential information that Tribes may 

provide. Tribal commenters repeatedly emphasized a lack 

of trust in the FOIA process and a general lack of Agency 

capacity to maintain confidentiality.

Many of the Tribes’ primary concerns relate directly to 

observance of traditional and cultural practices. Specific 

examples of possible hazards to the Tribes’ religious 

practices include disrupted ceremonies, vandalism or 

looting of sacred sites, or damage to other culturally 

important resources such as plant communities and water 

resources. In many cases, Tribal observers may be strictly 

forbidden to discuss the location, use, origin, and sacred 

nature of a particular site with others who do not practice 

the same life ways. These exclusions sometimes include 

fellow Tribal members who are not elders, traditional 

practitioners, or members of specific sacred societies. 

This further complicates matters because without knowing 

the location of the sacred site(s), it is obviously difficult 

to offer protection. Although many Tribal people remain 

reluctant to share information about those sites or about 

other traditional and cultural practices, an interest is 

increasing on the part of both the Forest Service and Indian 

Tribes to incorporate traditional knowledge into Agency 

operations, land management decisions, and research 

projects that may require that some Tribal information have 

additional protection from disclosure.

Protection of confidential Tribal information is a key 

component of success in achieving such management 

outcomes and the U.S. policy of “protecting and preserving 

the traditional, cultural, and ceremonial rites and practices 

of Indian Tribes.”7

 It is therefore incumbent upon 

Agency personnel to respect Tribal concerns and make 

full use of available authorities and Tribal consultation 

in protecting Tribal information from disclosure. In 

addition to consultation, it is highly recommended that 

a Memorandum of Understanding (MOU) or Agreement 

(MOA) be developed that specifies custody of information 

and protocols for protecting confidentiality.

Key Concepts

The following are Federal legislation or policies that 

address confidentiality. 

The Freedom of Information Act8

The release of information that is acquired by the 

Government to the public is governed by FOIA, which 

generally provides that any person has a right, enforceable 

in court, to obtain access to Federal agency records, 

except to the extent that such records (or portions of 

them) are protected from public disclosure by one of nine 

exemptions or by one of three special law enforcement 

record exclusions. Agency responsibility and authorities 

to allow protection of Tribal information lie within these 

exemptions, typically exemption 3, which permits the 

Government to withhold information that is prohibited from 

disclosure by a statute. The key exemption at 5 USC 552(b)

(3) specifically exempts information that is—

(3) specifically exempted from disclosure by statute (other

than section 552b of this title), if that statute—

(A) (i) requires that the matters be withheld from

the public in such a manner as to leave no 

discretion on the issue; or

(ii) establishes particular criteria for withholding

or refers to particular types of matters to be 

withheld; and

(B) if enacted after the date of enactment of the

Open FOIA Act of 2009, specifically cites to this 

paragraph.

The Privacy Act of 1974 provides safeguards against 

unwarranted invasions of privacy through the misuse of 

records by Federal agencies by restricting disclosure of 

personally identifiable records maintained by agencies. As 

such, other FOIA exemptions for nondisclosure of Tribal 

information, particularly related to the personal privacy 

interests of culture keepers and traditional practitioners, 

may be applicable. Exemption 6 in particular covers 

information addressing—

7 25 U.S. Code, chapter 32A, (Cultural and Heritage Cooperation Authority, citing Native American Graves Protection and Repatriation Act [NAGPRA] and 

American Indian Religious Freedom Act). Note: neither NAGPRA nor Executive Order [EO] 13007 is considered a withholding statute. NAGPRA does not 

address nondisclosure and includes no language that identifies it as a withholding statute. An EO does not qualify as a statute and therefore cannot exempt 

information from disclosure.

8

 For a full discussion of Freedom of Information Act (FOIA) and FOIA exemptions, see U.S. Department of Justice “Freedom of Information Act Guide, May 

2004“ (May, 2014).
20 Tribal Cultural and Heritage Cooperation Authority Technical Guide

(6) personnel and medical files and similar files, the

disclosure of which would constitute a clearly 

unwarranted invasion of personal privacy.

Tribal information about sacred sites or areas of traditional 

use may potentially be “similar files,” the disclosure 

of which would violate the privacy interests of those 

individuals responsible for maintaining cultural and sacred 

information. Per the U.S. Department of Justice—

Information meets the threshold requirement of 

Exemption 6 [5 USC 552 (b)(6)] if it falls within the 

category of “personnel and medical files and similar 

files.” Personnel and medical files are easily identified, 

but what constitutes a “similar file” warrants more 

analysis. In United States Department of State v. 

Washington Post Co.,9 the United States Supreme Court 

held, based upon a review of the legislative history of 

the FOIA that Congress intended the term “similar 

files” to be interpreted broadly, rather than narrowly. 

The Court stated that the protection of an individual’s 

privacy “surely was not intended to turn upon the label 

of the file which contains the damaging information.” 

Rather, the Court made clear that all information that 

“applies to a particular individual” meets the threshold 

requirement for Exemption 6 protection.

When conducting a FOIA analysis, consider the integral 

nature of FOIA in protecting Tribal information, and sacred 

sites information in particular—

FOIA is the exclusive mechanism through which 

the public can proactively gain access to Agency 

information regarding sacred sites. If a member of the 

public requests an agency’s sacred-site information, 

FOIA directly controls whether disclosure is mandatory 

or whether the agency can withhold the information 

under an exemption. Furthermore, the Supreme Court 

has rejected the possibility that the federal government’s 

unique fiduciary obligations to Tribes uniformly exempt 

tribal information from FOIA coverage.10 Thus, 

agencies’ ability to keep site information secret turns 

entirely on FOIA and its exemptions. ... any given 

agency can promise Native Americans confidentiality 

only to the extent that the information provided is 

exempt from mandatory disclosure under FOIA.

11

The concept of Intellectual Property Rights (IPR) has 

been widely discussed as a mechanism for maintaining 

confidentiality of Tribal information. IPR concepts of 

commercialization and public versus private domain use, 

however, are difficult to apply to knowledge that comes 

from traditional sources because that knowledge often 

cannot be valued on a commercial scale or retains any 

sort of legal “ownership.” The Forest Service has multiple 

statutory authorities available to protect sensitive Tribal 

information, and this chapter of the CHCA technical guide 

focuses on those at hand for the moment. For additional 

guidance, consider the decades-long work of the United 

Nations Working Group on the Rights of Indigenous 

Populations and the U.N. Declaration on the Rights of 

Indigenous Peoples, which consistently frame intellectual 

property rights as a human rights issue for Tribal nations 

and integral to their self-determination—

“Indigenous peoples have the right to maintain, control, 

protect and develop their cultural heritage, traditional 

knowledge and traditional cultural expressions, as well 

as the manifestations of their sciences, technologies and 

cultures, including human and genetic resources, seeds, 

medicines, knowledge of the properties of fauna and 

flora, oral traditions, literatures, designs, sports and 

traditional games and visual and performing arts. They 

also have the right to maintain, control, protect and 

develop their intellectual property over such cultural 

heritage, traditional knowledge, and traditional cultural 

expressions.”12

As policy and case law continue to evolve on intellectual 

property rights in relation to traditional knowledge and 

cultures, future editions of the CHCA technical guide will 

undoubtedly expand on these concepts.

A final note on FOIA and transparency; it has been 

suggested that executive direction on transparency and open 

Government supersedes FOIA protection. As the openness 

in Government is presumed,13 the U.S. Department of 

Justice will defend a denial of a FOIA request only if (1) 

the agency reasonably foresees that disclosure would harm 

an interest protected by one of the statutory exemptions, or 

(2) disclosure is prohibited by law.14 In the case of Indian 

sacred sites and traditional and cultural purposes, both 

thresholds may be met.

Federal Nondisclosure or “Withholding” Statutes

As the controlling statute in protection of Tribal 

information, the operative phrase in 552 (b)(3) of the 

FOIA is, “exempted from disclosure by statute (other than 

section 552b of this title).” For purposes of nondisclosure, 

the Forest Service is unique among Federal agencies in 

having such agency-specific nondisclosure authority in the 

CHCA. Although FOIA exemption 3 is the most robust 

general authority for nondisclosure of Tribal information, 

9

 456 U.S. 595 (1982).

10 Dep’t of Interior v. Klamath Water Users Protective Assn, 532 U.S. 1, 11 (2001). 11 Plaut, Ethan, “Tribal-Agency Confidentiality: A Catch-22 for Sacred Site Management?” Ecology Law Quarterly, Vol. 36:137(2009).

12 United Nations Declaration on the Rights of Indigenous Peoples, 61/295 (September 13, 2007). 13 Transparency and Open Government, Presidential Memorandum. 74 Fed. Reg. 4685 (January 26, 2009). 14 The Freedom of Information Act, Attorney General. Memorandum of March 19, 2009.
Tribal Cultural and Heritage Cooperation Authority Technical Guide 21

section 3056 of the CHCA specifically mandates the 

Secretary of Agriculture to protect particular types of Tribal 

information, as discussed in the following.

National Historical Preservation Act

Section 307103 of NHPA explicitly limits the disclosure 

of information regarding sensitive historic resources, and 

directs the heads of Federal agencies to “withhold from 

disclosure to the public, information about the location, 

character, or ownership of a historic property if the 

Secretary and the Agency determine that disclosure may—

(1) cause a significant invasion of privacy;

(2) risk harm to the historic property; or

(3) impede the use of a traditional religious site by

practitioners.”

Under NHPA, the Federal agency head or official may 

further determine who may have access to the information.

Archaeological Resources Protection Act15

Section 470hh of Archaeological Resources Protection 

(ARPA) prohibits disclosure of information about the 

nature and location of archaeological resources for which 

the excavation or removal requires a permit or other 

permission— 16

(a) Disclosure of information

Information concerning the nature and location of any

archaeological resource for which the excavation or 

removal requires a permit or other permission under 

this chapter or under any other provision of Federal 

law may not be made available to the public under 

subchapter II of chapter 5 of title 5 or under any other 

provision of law unless the Federal land manager 

concerned determines that such disclosure would—

(1) further the purposes of this chapter or the Act 

of June 27, 1960 (16 USC 469–469c) [16 USC 

469–469c–1], and

(2) not create a risk of harm to such resources or to the

site at which such resources are located.

Administrative Dispute Resolution Act

In some instances, the Administrative Dispute Resolution 

Act (5 USC 571) may also be used to protect information 

with a dispute resolution process. Section 574 (subsections 

(d) and (e) of that Act) provides confidentiality authority 

in the context of using neutrals in dispute resolution. 

In essence, a neutral in a dispute resolution proceeding 

“shall not voluntarily disclose or through discovery or 

compulsory process be required to disclose any dispute 

resolution communication or any communication 

provided in confidence to the neutral.” A neutral may 

disclose information by certain conditions. The parties 

may agree to disclosure or, if the neutral is requested by 

way of discovery request or other legal process and the 

parties do not respond to a notice of that request within a 

specific timeframe, the neutral may disclose the requested 

information. 

Forest Service-Specific Withholding 

Statutes

The following are a list of legislation or policy addressing 

confidentiality that is specific within the Forest Service.

Cultural and Heritage Cooperation Authority17

The CHCA derives from the 2008 Farm Bill18 and provides 

explicit authority for nondisclosure of information related 

to reburials, traditional and cultural resources and purposes, 

and research data provided under express expectation of 

confidentiality—

3056 Prohibition on disclosure

(a) Nondisclosure of information

(1) In general—The Secretary shall not disclose

under section 552 of title 5 (commonly known as 

the “Freedom of Information Act”), information 

relating to—

(A) subject to subsection (b)(l),1 human remains

or cultural items reburied on National Forest 

System land under section 3053 of this title; or

(B) subject to subsection (b)(2), resources, cultural 

items, uses, or activities that—

(i) have a traditional and cultural purpose; and

(ii) are provided to the Secretary by an

Indian or Indian tribe under an express 

expectation of confidentiality in the 

context of forest and rangeland research 

activities carried out under the authority 

of the Forest Service.

(2) Limitations on disclosure—Subject to subsection

(b)(2), the Secretary shall not be required to 

disclose information under section 552 of title 5 

15 16 U.S. Code (USC) 470aa-470mm. Note that the law that moved the National Historic Preservation Act (NHPA) to title 54 specifies that a reference to an 

old title 16 provision (e.g., 16 USC 470f, for Section 106 of the NHPA) is legally deemed to refer to the corresponding provision in the new title 54.

16 Although it is rarely used, one exception to disclosure under Archaeological Resources Protection Act for requests exists for disclosures made by a 

governor of any State who submits a written request that includes (1) the specific site or area for which information is sought, (2) the purpose for which 

such information is sought, and (3) a commitment by the governor to adequately protect the confidentiality of such information to protect the resource 

from commercial exploitation. Upon such requests, the land manager shall provide to the governor information concerning the nature and location of 

archaeological resources within the State of the requesting governor (36 Code of Federal Regulations 296.18).

17 25 USC, chapter 32A. 18 The Food, Conservation, and Energy Act of 2008 (Pub.L. 110–234, H.R. 2419, 122 Stat. 923, enacted May 22, 2008).
22 Tribal Cultural and Heritage Cooperation Authority Technical Guide

(commonly known as the “Freedom of Information 

Act”), concerning the identity, use, or specific 

location in the National Forest System of—

 (A) site or resource used for traditional and

cultural purposes by an Indian tribe; or

(B) any cultural items not covered under section

3053 of this title.

(b) Limited release of information

(1) Reburial—The Secretary may disclose information

described in subsection (a)(l)(A) 2 if, before the 

disclosure, the Secretary—

(A) consults with an affected Indian tribe or lineal 

descendent;

(B) determines that disclosure of the

information—

 (i) would advance the purposes of this

chapter; and

(ii) is necessary to protect the human remains

or cultural items from harm, theft, or 

destruction; and

(C) attempts to mitigate any adverse impacts

identified by an Indian tribe or lineal 

descendant that reasonably could be expected 

to result from disclosure of the information.

(2) Other information—The Secretary, in consultation 

with appropriate Indian tribes, may disclose 

information described under paragraph (1)(B) or 

(2) of subsection (a) if the Secretary determines 

that disclosure of the information to the public—

(A) would advance the purposes of this chapter;

(B) would not create an unreasonable risk of

harm, theft, or destruction of the resource, 

site, or object, including individual organic or 

inorganic specimens; and

(C) would be consistent with other applicable

laws.

National Forest Management Act

During consultation meetings for the Forest Service 

Planning Rule, the Agency also heard from Tribal leaders 

about major concerns about confidentiality. In response, 

the Planning Rule explicitly addresses confidentiality and 

emphasizes that authorities to protect information shall be 

fully exercised—

“During the planning process, the responsible 

official shall comply with section 8106 of the Food, 

Conservation, and Energy Act of 2008 (CHCA 3056), 

EO 13007 of May 24, 1996, EO 13175 of November 

6, 2000, laws, and other requirements with respect to 

disclosing or withholding under FOIA(5 USC 552) 

certain information regarding reburial sites.”

Executive Order 13007 as Nonexempting Under FOIA

Although it is the only Federal policy that solely addresses 

sacred sites across all Federal land management agencies, 

EO 13007 is not a withholding statute under FOIA, nor 

does it statutorily exempt information from disclosure. The 

EO does, however, direct agencies to—

(1) accommodate access to and ceremonial use of Indian

sacred sites by Indian religious practitioners; and

(2) avoid adversely affecting the physical integrity of 

such sacred sites. Where appropriate, agencies shall 

maintain the confidentiality of sacred sites (emphasis 

added). 19

Collecting Confidential Information 

and Data

Early development of agreements that outline the rights 

and responsibilities of all parties in the Forest Service 

or Indian Tribe relationship may preclude conflicts and 

challenges later on—and contribute to fulfillment of trust 

responsibilities as well as sound business practice. Forest 

Service Regions make frequent use of an MOA or MOU to 

clarify roles and responsibility within the trust relationship, 

on issues ranging from consultation to reserved rights 

and in ceded territories to forest closures for ceremonies. 

As noted in chapter 3 of this technical guide, agreements 

are bilateral government-to-government instruments, 

and each provision of such agreements is negotiated in 

good faith between the parties. “Canned” agreements 

and G&A templates may need to be modified to account 

for the government-to-government relationship. Bilateral 

agreements with Indian Tribes do not require Grants 

and Agreements (G&A) approval. Your G&A Specialist 

may provide valuable input in crafting such agreements, 

however.

On the issue of confidentiality, it is particularly important 

to have clarity on how information will be collected, shared 

between the Indian Tribes and the Agency, and protected 

from disclosure. Addressing these issues through early 

consultation can enable flexibility in the protection and 

nondisclosure of important cultural resources.

Although most memoranda include a standard contract 

provision regarding FOIA, most do not expand that 

provision to address Forest Service authorities that trigger 

19 Indian sacred sites, Exec. Order No. 13007, 61 Fed. Reg. 26771 (May 29, 1996) at section 1.
Tribal Cultural and Heritage Cooperation Authority Technical Guide 23

FOIA exemptions and protect Tribal information. Standard 

references to FOIA exemptions under the National Historic 

Preservation and ARPA are typically cited but should also 

include the CHCA,

20 which extends beyond prehistoric or 

historic resources to cover contemporary traditional and 

cultural information, particularly Traditional Ecological 

Knowledge (PA), for both forest and research activities. 

Provided are sample confidentiality provisions that have 

been utilized in the regions, plus a template for a researchspecific agreement.

Control and Protection of Sensitive 

Security Information21

The USDA has promulgated policy on Sensitive Security 

Information (SSI)22 that may address the custody, 

maintenance, and nondisclosure of confidential Tribal 

information. In addition to addressing statutory FOIA

exemptions, DR-3440-2 provides guidance on identifying, 

labeling, storing, and accessing SSI. This policy covers 

information about assets and services that are critical to the 

“continuity of government operations,” and “that if publicly 

disclosed could be expected to have a harmful impact 

on the security of the Federal operations or assets,” or 

information that, if released, “harms interstate, international 

commerce of the United States.” As positive and proactive 

Tribal consultation and relationships are integral to the 

continuity of Government (Forest Service) operations, 

and as disclosure of Tribal information has the potential 

to harm interstate commerce,23 a case may be made that 

Tribal information may be classified as “sensitive security 

information,” subject to protections afforded by DR 

3440-2. Such protection would facilitate continued Forest 

Service operations and commerce by reducing litigation 

and delays.

In some situations, it is desired or necessary that the 

original holders of sensitive information may be the best 

holder of that information, sharing only with the Forest 

Service on an as-needed basis. For example, the exact 

location of a sacred site may be better protected if a 

designated Tribal representative holds maps identifying that 

location. That representative may show the map to Forest 

Service personnel in response to planning or emergency 

response activities, but would maintain possession of the 

map itself. 

USDA DR-3440-2 Definitions

a. Critical Infrastructure: physical and cyber-based 

systems, assets (including information whether stored 

on paper, electronically, or using other means), and 

services essential to the government or economy of 

the United States or to a political subdivision thereof, 

including, but not limited to, systems, facilities, and 

stockpiles necessary for the operation, maintenance, 

or distribution of essential goods and services, such 

as telecommunications (including voice and data 

transmission and the Internet), electrical power, gas 

and oil storage, transportation, banking and finance, 

public health (including biological, chemical, 

radiological, and other hazardous materials), water 

supply, waste water, emergency services (including 

medical, fire, and police services), and the continuity of 

government operations;

b. Sensitive Security Information: unclassified

information of a sensitive nature, that if publicly 

disclosed could be expected to have a harmful impact 

on the security of Federal operations or assets, the 

public health or safety of the citizens of the United 

States or its residents, or the nation’s long-term 

economic prosperity; and which describes, discusses, 

or reflects:

(1) The ability of any element of the critical

infrastructure of the United States to resist 

intrusion, interference, compromise, theft, or 

incapacitation by either physical or computerbased attack or other similar conduct that violates 

Federal, State, or local law; harms interstate, 

international commerce of the United States; or, 

threatens public health or safety;

20 25 U.S. Code (USC), chapter 32A.

21 USDA Departmental Regulation 3440-2 (January 30, 2003).

22 Known elsewhere as “controlled unclassified information” per Controlled Unclassified Information, Executive Order 13556, 75 Fed. Reg. 68675 

(November 9, 2010). 

23 The Commerce Clause of the Constitution of the United States at Article I, section 8, clause 3 governs Federal-Tribal relations.
24 Tribal Cultural and Heritage Cooperation Authority Technical Guide

Managing Confidential Information 

and Data

Just as important as consultation and sensitivity in the 

collection of Tribal information is the management of 

that information once in the possession of the Agency. 

FOIA mandates “appropriate administrative, technical 

and physical safeguards to insure the security and 

confidentiality of records.”24 For agencies that maintain 

Tribal information, compliance plans should take the 

following precautions, among others, into consideration—

1. Describe what information might or will be collected.

2. Describe what Tribal consultation will be conducted 

prior to collection of information.

3. Describe how information will be collected and by

whom.

4. Explicit notation or marking of information as

“CONFIDENTIAL.” 

5. Each document or GIS layer metadata, and so forth,

should quote the appropriate legal exemption(s) from 

public release.

6. Describe how information will be stored (paper files,

electronic files, databases).

7. Describe how information will be protected at every site

where it is stored (locked files, password-protected or 

encrypted e-files, and so on).

8. Describe who will have access to the data and records

and why (define “need-to-know”). 

Sample Compliance Language

Forest Service Manual 2368.1

Secure electronic data in the corporate information 

management environment through role-level security that 

restricts access to appropriately designated personnel. 

Electronic and hardcopy cultural resource information 

including inventory and evaluation records, maps, raw 

data, and reports may be withheld from disclosure from the 

public in order to prevent inadvertent or intentional damage 

to cultural resources. Both FOIA and Archaeological 

Resources Protection Act provide direction for the 

confidentiality of cultural resource records.25

Notice of Confidentiality

▪ The enclosed documents regarding Heritage Resources

and Tribal Consultation for the [Name of Project] 

Project contain sensitive and confidential information 

that may not be released to the public.

▪ “Notice: This document contains information subject to 

the confidentiality requirements in the Archaeological 

Resources Protection Act (codified at 16 USC 470aa 

through 470mm), the National Historic Preservation Act 

(codified at https://www.gpo.gov/fdsys/pkg/USCODE2015-title54/pdf/USCODE-2015-title54-subtitleIIIdivsnA-null-chap3001-sec300101.pdf and 307103), 

EO 13007- Sacred Sites, the Food, Conservation, and 

Energy Act of 2008 (codified at 25 USC 3056), and 

the Forest Service Regulations at 36 CFR 296.18 This 

information is exempt from disclosure under FOIA and 

shall not be made available to the public.”

24 5 U.S. Code 552a (e)(10) in full reads: “establish appropriate administrative, technical and physical safeguards to insure the security and confidentiality 

of records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, 

inconvenience, or unfairness to any individual on whom information is maintained.”

25 WO Amendment 2300-2008-1, Forest Service Manual 2368.1 on confidentiality.
Tribal Cultural and Heritage Cooperation Authority Technical Guide 25

Appendix A—Definitions

▪ Adjacency. Determined by management considerations 

of: (1) original burial location, (2) linear distance 

from the original burial location to the National Forest 

System lands boundary, (3) Tribal cultural and historical 

relationship between their prior occupancy and use 

of the original burial location and the National Forest 

System (NFS) lands, (4) other Federal or Tribal lands 

closer to the original burial location than the NFS lands, 

and (5) duplicate requests. (See Appendix C, “Sample 

Policy: Southern Region Policy on Reburial of Native 

American Remains,” for expanded discussion.)

▪ Bilateral agreement. Any form of agreement acceptable 

to the Indian Tribe and the Forest Service line officer 

that is executed by both a Tribal government official 

and the appropriate Forest Service line officer, and that 

preserves the sovereign rights of the Indian Tribe. A 

bilateral agreement may be used in lieu of a permit as 

the instrument of transfer of timber and/or other forest 

products to an Indian Tribe.

▪ Ceded territory. Territory ceded (surrendered or given 

up) by an Indian Tribe or group of Indian Tribes to the 

United States through treaty, as defined by the Schedule 

of Indian Land Cessions of the United States. These 

land cessions shall be used to determine which Indian 

Tribes may possess explicit or implicit reserved rights 

in the granting of free use timber for domestic purposes. 

The Forest Service GIS Indian Lands Map Viewer, 

Tribal Connections, shows ceded lands as well as 

contemporary Indian trust lands and NFS lands. 

▪ Commercial purpose. Although not defined under the 

Food, Conservation, and Energy Act of 2008 nor 36

CFR 223.15, for the purposes of this technical guide 

it is defined as the resale of trees, timber, or forest 

products without “value added.” Example: Harvest of 

Balsam boughs when specified by Memorandum of 

Understanding.

▪ Cultural items. Has the meaning given the term in 

25 USC 3001, except that the term does not include 

human remains, e.g.: “associated funerary objects” 

which shall mean objects that, as a part of the death 

rite or ceremony of a culture, are reasonably believed 

to have been placed with individual human remains 

either at the time of death or later, and both the human 

remains and associated funerary objects are presently 

in the possession or control of a Federal agency or 

museum, except that other items exclusively made for 

burial purposes or to contain human remains shall be 

considered as associated funerary objects (funerary 

objects” are the same objects, where the remains are 

not in the possession or control of the Federal agency 

or museum, and the objects can be identified by a 

preponderance of the evidence as related to specific 

individuals or families or to known human remains or, 

by a preponderance of the evidence, as having been 

removed from a specific burial site of an individual 

culturally affiliated with a particular Indian Tribe.)

▪ Domestic purpose. The use of trees or timber harvested 

pursuant to or for the construction of any structure, 

building, or appenditia (appendages or appurtenances of 

an estate or house) to be used for Tribal community or 

residential domestic purposes. Trees or timber harvested 

for a traditional and cultural purpose are not considered 

to be used for a domestic purpose.

▪ Historic property. Any prehistoric or historic district, 

site, building, structure, or object included in, or eligible 

for inclusion in, the National Register of Historic 

Places maintained by the Secretary of the Interior. This 

term includes artifacts, records, and remains that are 

related to and located within such properties. The term 

includes properties of traditional religious and cultural 

importance to an Indian Tribe or Native Hawaiian 

organization and that meet the National Register criteria 

(36 CFR 800.16).

▪ Human remains. The physical remains of the body of a 

person of Indian ancestry.

▪ Indian. An individual who is a member of an Indian 

Tribe.

▪ Indian Tribe. Any Indian or Alaska Native Tribe, band, 

nation, pueblo, village, or other community the name of 

which is included on a list published by the Secretary of 

the Interior pursuant to the Federally Recognized Indian 

Tribe List Act of 1994 (25 USC 479a-1; (List as of 

January 17, 2017).

▪ Lineal descendant. An individual that can trace, 

directly and without interruption, the ancestry of the 

individual through the traditional kinship system of an 

Indian Tribe, or through the common law system of 

descent, to a known Indian, the human remains, funerary 

objects, or other sacred objects of whom are claimed by 

the individual.
26 Tribal Cultural and Heritage Cooperation Authority Technical Guide

▪ National Forest System. Has the meaning given the 

term in section 1609(a) of title 16.

▪ Noncommercial purpose. Although not defined 

under the 2008 Farm Bill nor 36 CFR 223.15, for the 

purposes of this technical guide it is defined as the 

harvest of trees, timber or forest products for Tribal 

use or consumption, whether by the Tribal Community 

or individual Tribal member. Trees, timber or forest 

products with “value added” may be resold. Example: 

Ash bolts may not be resold. Traditional baskets made 

from ash bolts may be sold, however.

▪ Reburial site. A specific physical location at which 

cultural items or human remains are reburied.

▪ Special forest products. Products collected from 

NFS lands and include, but are not limited to, bark, 

berries, boughs, bryophytes, bulbs, burls, Christmas 

trees, cones, ferns, firewood, forbs, fungi (including 

mushrooms), grasses, mosses, nuts, pine straw, roots, 

sedges, seeds, transplants, tree sap, wildflowers, fence 

material, mine props, posts and poles, shingle and shake 

bolts, and rails. Special forest products do not include 

sawtimber, pulpwood, nonsawlog material removed 

in log form, cull logs, small roundwood, house logs, 

telephone poles, derrick poles, minerals, animals, 

animal parts, insects, worms, rocks, water, and soil 

(FSH 2409.18, 87.05).

▪ Traditional and cultural purpose. With respect to a 

definable use, area, or practice means that the use, area, 

or practice is identified by an Indian Tribe as traditional 

or cultural because of the long-established significance 

or ceremonial nature of the use, area, or practice to the 

Indian Tribe.

▪ Treaty rights. Those rights or interests reserved in 

treaties for the use and benefit of Indian Tribes. The 

nature and extent of treaty rights are defined in each 

treaty. Only Congress may abolish or modify treaties or 

treaty rights (FSM 1563).

▪ Tribal officials. Elected or duly appointed officials of 

Indian Tribal governments.

▪ Tribal representatives: Any Tribal agency, department, 

or commission with authority delegated by an Indian 

Tribal government or group of federally recognized 

Indian Tribal governments to represent the interests of 

that Indian Tribe or group of Indian Tribes.1

▪ Trust responsibility. The legally enforceable Federal 

fiduciary obligation of the United States to protect 

Tribal treaty rights, lands, assets, and resources, as 

well as a duty to carry out the mandates of Federal law 

with respect to American Indian and Alaska Native 

Tribes and villages. In several cases discussing the trust 

responsibility, the Supreme Court has used language 

suggesting that it entails legal duties, moral obligations, 

and the fulfillment of understandings and expectations 

that have arisen over the entire course of the 

relationship between the United States and the federally 

recognized Indian Tribes. The concept of Federal trust 

responsibility to Indians evolved from not only early 

treaties with Indian Tribes, but statutes—particularly 

the Trade and Intercourse Acts—and opinions of the 

Supreme Court.

1

 Many Indian Tribes delegate certain authorities to entities, such as the Great Lakes Indian Fish & Wildlife Commission, or the 1854 Treaty Authority, for 

example.
Tribal Cultural and Heritage Cooperation Authority Technical Guide 27

Appendix B—The Cultural and Heritage 

Cooperation Authority

Sec.

3051. Purposes.

3052. Definitions.

3053. Reburial of human remains and cultural items.

3054. Temporary closure for traditional and cultural 

purposes.

3055. Forest products for traditional and cultural

purposes.

3056. Prohibition on disclosure.

3057. Severability and savings provisions.

3051. Purposes

The purposes of this chapter are—

(1) to authorize the reburial of human remains and cultural

items on National Forest System land, including human 

remains and cultural items repatriated under the Native 

American Graves Protection and Repatriation Act (25 

USC 3001 et seq.);

(2) to prevent the unauthorized disclosure of information

regarding reburial sites, including the quantity and 

identity of human remains and cultural items on sites 

and the location of sites;

(3) to authorize the Secretary of Agriculture to ensure 

access to National Forest System land, to the maximum 

extent practicable, by Indians and Indian tribes for 

traditional and cultural purposes;

(4) to authorize the Secretary to provide forest products,

without consideration, to Indian tribes for traditional 

and cultural purposes;

(5) to authorize the Secretary to protect the confidentiality

of certain information, including information that is 

culturally sensitive to Indian tribes;

(6) to increase the availability of Forest Service programs

and resources to Indian tribes in support of the policy 

of the United States to promote tribal sovereignty and 

self-determination; and

(7) to strengthen support for the policy of the United States

of protecting and preserving the traditional, cultural, 

and ceremonial rites and practices of Indian tribes, 

in accordance with Public Law 95–341 (commonly 

known as the American Indian Religious Freedom Act; 

42 USC 1996).

(Pub. L. 110–234, title VIII, 8101, May 22, 2008, 122 Stat. 

1286; Pub. L. 110–246, 4(a), title VIII, 8101, June 18, 

2008, 122 Stat. 1664, 2048.)

REFERENCES IN TEXT

The Native American Graves Protection and Repatriation 

Act, referred to in par. (1), is Pub. L. 101–601, Nov. 

16, 1990, 104 Stat. 3048, which is classified principally 

to chapter 32 ( 3001 et seq.) of this title. For complete 

classification of this Act to the Code, see Short Title note 

set out under section 3001 of this title and Tables.

The American Indian Religious Freedom Act, referred to 

in par. (7), is Pub. L. 95–341, Aug. 11, 1978, 92 Stat. 469, 

which is classified to sections 1996 and 1996a of Title 42, 

The Public Health and Welfare. For complete classification 

of this Act to the Code, see Short Title note set out under 

section 1996 of Title 42 and Tables.

CODIFICATION

Pub. L. 110–234 and Pub. L. 110–246 enacted identical 

sections. Pub. L. 110–234 was repealed by section 4(a) of 

Pub. L. 110–246.

EFFECTIVE DATE

Enactment of this chapter and repeal of Pub. L. 110–234 

by Pub. L. 110–246 effective May 22, 2008, the date of 

enactment of Pub. L. 110–234, see section 4 of Pub. L. 

110–246, set out as a note under section 8701 of Title 7, 

Agriculture.

DEFINITION OF “SECRETARY”

“Secretary” as meaning the Secretary of Agriculture, see 

section 8701 of Title 7, Agriculture.

3052. Definitions

In this chapter—

• Adjacent site: The term “adjacent site” means a site 

that borders a boundary line of National Forest System 

land.

• Cultural items: The term “cultural items” has the 

meaning given the term in section 3001 of this title, 

except that the term does not include human remains.
28 Tribal Cultural and Heritage Cooperation Authority Technical Guide

• Human remains: The term “human remains” means 

the physical remains of the body of a person of Indian 

ancestry.

• Indian: The term “Indian” means an individual who is a 

member of an Indian tribe.

• Indian Tribe: The term “Indian Tribe” means any 

Indian or Alaska Native tribe, band, nation, pueblo, 

village, or other community the name of which is 

included on a list published by the Secretary of the 

Interior pursuant to section 479a–1 of this title.

• Lineal descendant: The term “lineal descendant” 

means an individual that can trace, directly and without 

interruption, the ancestry of the individual through the 

traditional kinship system of an Indian tribe, or through 

the common law system of descent, to a known Indian, 

the human remains, funerary objects, or other sacred 

objects of whom are claimed by the individual. 

• National Forest System: The term “National Forest 

System” has the meaning given the term in section 

1609(a) of title 16.

• Reburial site: The term “reburial site” means a specific 

physical location at which cultural items or human 

remains are reburied.

• Traditional and cultural purpose: The term 

“traditional and cultural purpose”, with respect to a 

definable use, area, or practice, means that the use, area, 

or practice is identified by an Indian tribe as traditional 

or cultural because of the long-established significance 

or ceremonial nature of the use, area, or practice to the 

Indian tribe.

(Pub. L. 110–234, title VIII, 8102, May 22, 2008, 122 Stat. 

1287; Pub. L. 110–246, 4(a), title VIII, 8102, June 18, 

2008, 122 Stat. 1664, 2048.)

CODIFICATION

Pub. L. 110–234 and Pub. L. 110–246 enacted identical 

sections. Pub. L. 110–234 was repealed by section 4(a) of 

Pub. L. 110–246.

3053. Reburial of human remains 

and cultural items

(a) Reburial sites

In consultation with an affected Indian Tribe or lineal 

descendant, the Secretary may authorize the use of 

National Forest System land by the Indian Tribe or 

lineal descendant for the reburial of human remains 

or cultural items in the possession of the Indian Tribe 

or lineal descendant that have been disinterred from 

National Forest System land or an adjacent site.

(b) Reburial

With the consent of the affected Indian tribe or lineal 

descendent, the Secretary may recover and rebury, at 

Federal expense or using other available funds, human 

remains and cultural items described in subsection (a) 

at the National Forest System land identified under that 

subsection.

(c) Authorization of use

(1) In general

Subject to paragraph (2), the Secretary may

authorize such uses of reburial sites on National 

Forest System land, or on the National Forest 

System land immediately surrounding a reburial 

site, as the Secretary determines to be necessary 

for management of the National Forest System.

(2) Avoidance of adverse impacts

In carrying out paragraph (1), the Secretary shall

avoid adverse impacts to cultural items and human 

remains, to the maximum extent practicable.

(Pub. L. 110–234, title VIII, 8103, May 22, 2008, 122 Stat. 

1287; Pub. L. 110–246, 4(a), title VIII, 8103, June 18, 

2008, 122 Stat. 1664, 2049.)

CODIFICATION

Pub. L. 110–234 and Pub. L. 110–246 enacted identical 

sections. Pub. L. 110–234 was repealed by section 4(a) of 

Pub. L. 110–246.

DEFINITION OF “SECRETARY”

“Secretary” as meaning the Secretary of Agriculture, see 

section 8701 of Title 7, Agriculture.

3054. Temporary closure for traditional 

and cultural purposes

(a) Recognition of historic use

To the maximum extent practicable, the Secretary 

shall ensure access to National Forest System land 

by Indians for traditional and cultural purposes, in 

accordance with subsection (b), in recognition of the 

historic use by Indians of National Forest System land.

(b) Closing land from public access

(1) Authority to close

Upon the approval by the Secretary of a

request from an Indian tribe, the Secretary may 

temporarily close from public access specifically 

identified National Forest System land to protect 

the privacy of tribal activities for traditional and 

cultural purposes.
Tribal Cultural and Heritage Cooperation Authority Technical Guide 29

(2) Limitation

A closure of National Forest System land under 

paragraph (1) shall affect the smallest practicable 

area for the minimum period necessary for 

activities of the applicable Indian tribe.

(3) Consistency

Access by Indian tribes to National Forest System

land under this subsection shall be consistent with 

the purposes of Public Law 95–341 (commonly 

known as the American Indian Religious Freedom 

Act; 42 USC 1996).

(Pub. L. 110–234, title VIII, 8104, May 22, 2008, 122 Stat. 

1288; Pub. L. 110–246, 4(a), title VIII, 8104, June 18, 

2008, 122 Stat. 1664, 2049.)

REFERENCES IN TEXT

The American Indian Religious Freedom Act, referred to 

in subsec. (b)(3), is Pub. L. 95–341, Aug. 11, 1978, 92 

Stat. 469, which is classified to sections 1996 and 1996a 

of Title 42, The Public Health and Welfare. For complete 

classification of this Act to the Code, see Short Title note 

set out under section 1996 of Title 42 and Tables.

CODIFICATION

Pub. L. 110–234 and Pub. L. 110–246 enacted identical 

sections. Pub. L. 110–234 was repealed by section 4(a) of 

Pub. L. 110–246.

DEFINITION OF “SECRETARY”

“Secretary” as meaning the Secretary of Agriculture, see 

section 8701 of Title 7, Agriculture.

3055. Forest products for traditional 

and cultural purposes

(a) In general

Notwithstanding section 472a of Title 16, the Secretary 

may provide free of charge to Indian tribes any trees, 

portions of trees, or forest products from National 

Forest System land for traditional and cultural 

purposes.

(b) Prohibition

Trees, portions of trees, or forest products provided 

under subsection (a) may not be used for commercial 

purposes.

(Pub. L. 110–234, title VIII, 8105, May 22, 2008, 122 Stat. 

1288; Pub. L. 110–246, 4(a), title VIII, 8105, June 18, 

2008, 122 Stat. 1664, 2050.)

CODIFICATION

Pub. L. 110–234 and Pub. L. 110–246 enacted identical 

sections. Pub. L. 110–234 was repealed by section 4(a) of 

Pub. L. 110–246.

DEFINITION OF “SECRETARY”

“Secretary” as meaning the Secretary of Agriculture, see 

section 8701 of Title 7, Agriculture.

3056. Prohibition on disclosure

(a) Nondisclosure of information

(1) In general

The Secretary shall not disclose under section 552

of title 5 (commonly known as the “Freedom of 

Information Act”), information relating to—

(A) subject to subsection (b)(l)1, human remains 

or cultural items reburied on National Forest 

System land under section 3053 of this title; or

(B) subject to subsection (b)(2), resources, cultural 

items, uses, or activities that—

(i) have a traditional and cultural purpose;

and

(ii) are provided to the Secretary by an

Indian or Indian tribe under an express 

expectation of confidentiality in the 

context of forest and rangeland research 

activities carried out under the authority 

of the Forest Service.

(2) Limitations on disclosure

Subject to subsection (b)(2), the Secretary shall not 

be required to disclose information under section 

552 of title 5 (commonly known as the “Freedom 

of Information Act”), concerning the identity, use, 

or specific location in the National Forest System 

of—

 (A) a site or resource used for traditional and

cultural purposes by an Indian tribe; or

(B) any cultural items not covered under section

3053 of this title.

(b) Limited release of information

(1) Reburial

The Secretary may disclose information described

in subsection (a)(l)(A)2 if, before the disclosure, 

the Secretary—

(A) consults with an affected Indian Tribe or lineal 

descendent;

(B) determines that disclosure of the 1

2

 So in original. Probably should be “(b)(1),”. information—

 So in original. Probably should be “(a)(1)(A)”.
30 Tribal Cultural and Heritage Cooperation Authority Technical Guide

 (i) would advance the purposes of this

chapter; and

(ii) is necessary to protect the human remains

or cultural items from harm, theft, or 

destruction; and

(C) attempts to mitigate any adverse impacts

identified by an Indian Tribe or lineal 

descendant that reasonably could be expected 

to result from disclosure of the information.

(2) Other information

The Secretary, in consultation with appropriate 

Indian Tribes, may disclose information described 

under paragraph (1)(B) or (2) of subsection (a) 

if the Secretary determines that disclosure of the 

information to the public—

(A) would advance the purposes of this chapter;

(B) would not create an unreasonable risk of

harm, theft, or destruction of the resource, 

site, or object, including individual organic or 

inorganic specimens; and

(C) would be consistent with other applicable

laws.

(Pub. L. 110–234, title VIII, 8106, May 22, 2008, 122 Stat. 

1288; Pub. L. 110–246, 4(a), title VIII, 8106, June 18, 

2008, 122 Stat. 1664, 2050.)

CODIFICATION

Pub. L. 110–234 and Pub. L. 110–246 enacted identical 

sections. Pub. L. 110–234 was repealed by section 4(a) of 

Pub. L. 110–246.

DEFINITION OF “SECRETARY”

“Secretary” as meaning the Secretary of Agriculture, see 

section 8701 of Title 7, Agriculture.

3057. Severability and savings 

provisions

(a) Severability

If any provision of this chapter, or the application 

of any provision of this chapter to any person or 

circumstance is held invalid, the application of such 

provision or circumstance and the remainder of this 

chapter shall not be affected thereby.

(b) Savings

Nothing in this chapter—

(1) diminishes or expands the trust responsibility

of the United States to Indian tribes, or any 

legal obligation or remedy resulting from that 

responsibility;

(2) alters, abridges, repeals, or affects any valid 

agreement between the Forest Service and an 

Indian tribe;

(3) alters, abridges, diminishes, repeals, or affects any 

reserved or other right of an Indian tribe; or

(4) alters, abridges, diminishes, repeals, or affects 

any other valid existing right relating to National 

Forest System land or other public land.

(Pub. L. 110–234, title VIII, 8107, May 22, 2008, 122 Stat. 

1289; Pub. L. 110–246, 4(a), title VIII, 8107, June 18, 

2008, 122 Stat. 1664, 2051.)

CODIFICATION

Pub. L. 110–234 and Pub. L. 110–246 enacted identical 

sections. Pub. L. 110–234 was repealed by section 4(a) of 

Pub. L. 110-246.
Tribal Cultural and Heritage Cooperation Authority Technical Guide 31

Appendix C—Reburial of Human Remains 

(Chapter 1)

Sample Policy: Southern Region 

Policy on Reburial of Native American 

Remains

Topic: The 2008 Farm Bill; Regional Process for 

Considering the Reburial of Native American Remains on 

National Forest System (NFS) Lands

Issue: The Southern Region’s units are receiving reburial 

requests at an increasing rate and this policy provides 

a consistent process for considering and approving the 

reburial of Native American remains on NFS lands, 

while accounting for the uniqueness of each request. 

Currently, some reburial requests are active or pending 

in the Southern Region. This is the Southern Region’s 

Process for Considering the Reburial of Native American 

Remains under the 2008 Farm Bill Authority as expressed 

in the Forest Service Manual (FSM) 1560 section for 

Tribal Relations (and as codified in 25 USC, chapter 

32A, section 3053). It focuses on four key considerations 

when considering reburial requests from federally 

recognized Tribes: (1) delegation of authority, (2) regional 

coordination, (3) adjacency considerations, and (4) land 

management considerations. It will also inform Tribes of 

Forest Service information needs and process when they 

make a request.

Southern Region Process:

Delegation of Authority:

The regional forester (RF) may delegate, in writing, 

authority to a forest supervisor, area supervisor, or forest 

manager to accept or reject reburial requests. In such cases, 

all regional office coordination requirements remain in 

place.

Regional Coordination: 

Coordination between the region, forest, and Tribes is vital 

to provide a timely response to requesting Tribe(s), account 

for potential overlapping requests to multiple units, and 

ensure consistency in application of requirements.

1. When reburial requests are received on units, early

notification, and coordination with the regional planning 

director through the regional Tribal Relations staff is 

required. The Tribal Relations Staff will coordinate with 

the Heritage Program Manager.

2. Following receipt of a request and early notification

to the regional office, the unit’s fully developed 

recommendation should be submitted through formal 

correspondence to the RF through the Regional Planning 

Director. This recommendation should include—

a. The original reburial request.

b. The original location.

c. How the Tribe is in legal possession of the remains 

(e.g., Native American Graves Protection and 

Repatriation Act (NAGPRA).

d. How adjacency is determined.

e. The unit’s recommendation.

3. Upon RF acceptance of a reburial request, the forest 

will develop a reburial Memorandum of Understanding 

(MOU) with the requesting Tribe or Tribes that delineates 

the reburial process. As the authorizing official, the RF 

or the RF’s delegate will be a signatory to the MOU. 

The unit should circulate the MOU with the Regional 

Planning Director and Tribal Relations Program Manager 

concurrently with the requesting Tribe(s).

4. When the RF has declined a reburial request, the RF

will inform the Tribe of the denial and the decisionmaking rationale in writing in a timely manner.

Adjacency Considerations:

The regional Heritage and Tribal Relations staff will 

help units build an understanding of adjacency for each 

request to assist in developing the forest supervisor’s 

recommendation to the regional forester. Regional office 

coordination will provide consistency, particularly in cases 

when the same request is made to more than one unit.

As a result, the forest supervisor, as the recommending 

official, together with the RF, as the deciding official, 

can act with consistent and legal discretion in reviewing 

adjacency and making determinations regarding reburial 

requests.

Key management considerations when making 

determinations regarding the adjacency of a reburial 

request include—

1. Where was the original burial location? Exact locations

are not always known by museums. If the exact location 

is not known, can the county of origin be determined?
32 Tribal Cultural and Heritage Cooperation Authority Technical Guide

2. What is the linear distance from the original burial

location to the NFS lands boundary?

3. What is the Tribal, cultural, and historical relationship 

between their prior occupancy and use of the original 

burial location and the NFS lands? In other words, how 

are the original burial location and the NFS lands related 

in Tribal geography, history, and land use?

4. Are other Federal or Tribal lands closer to the original 

burial location than the NFS lands? How are Federal 

lands arrayed in the area of the original burial location? 

Is the NFS unit the closest in proximity? What would 

the requesting Tribe(s) view as the most appropriate 

location for reburial if the Agency was not constrained 

by current land ownership patterns?

5. Has the reburial request been made to other Southern

Region units (or units in other regions) now or in the 

past? With a duplicate request, are other NFS or Federal 

lands in closer proximity?

Land Management Considerations:

The Forest Service retains the discretion to decide whether 

to authorize reburial of American Indian and Alaska Native 

human remains and cultural items on NFS lands, and under 

what conditions reburials will occur.

Key Forest Service Manual (FSM 1563) Considerations 

for land management regarding reburial include—

• Avoid adverse impacts to human remains and cultural 

items to the maximum extent possible.

• National Environmental Policy Act (NEPA), National 

Historic Preservation Act (NHPA), and other legal 

processes are required for reburials.

• Many Tribes consider reburial sites to be sacred sites.

• Tribes will desire continued access to these sites and 

may want to visit for ceremonial purposes.

• Develop and implement mitigation measures in

consultation with Tribal governments to minimize or 

avoid adverse impacts to reburial sites that may be 

caused by land uses.

• Information on the reburials and reburial locations is

exempt under Freedom of Information Act (FOIA) 

under specific legal authority.

• Information about the location, character, or ownership 

of a sacred site is kept confidential if such disclosure 

will risk or harm the site, impede the use of the sacred 

site, or cause a significant invasion of privacy.

Key Southern Region Considerations

Key regional considerations regarding land management 

and reburial include—

1. Tribes are reburying the remains of their ancestors and 

cultural items they never expected to be disturbed in 

the first place. Tribes desire their ancestors to have an 

undisturbed resting place.

2. Accepting a reburial is a long-term commitment and

has implications for land management at least in the 

immediate vicinity of the reburial.

3. Consider locations that are likely to remain undisturbed,

such as areas with restricted land management options 

and areas that may be withdrawn from mineral entry. 

These may include—

• Wilderness where management activities and 

development are restricted.

• Research Natural Areas where activities may be 

highly constrained.

• Other areas with restricted administration under the

Land Management Plan.

• Administrative sites with broad discretion. Sites

selected for reburials, however, should not be 

locations under consideration for transfer or sale.

• Areas geographically unlikely for intensive resource

management activities.

• Areas unlikely to be leased or explored for mineral

production (locatable and leasable).

4. Coordinate with Tribes to find reburial location(s) 

suitable to them.

• Match desired locations against locations with the

best protection in the long term.

• Security and protection of reburial sites cannot be

guaranteed. Seek ways to mutually monitor locations 

against damage and looting.

• Work to balance access for Tribes and Tribal elders 

with the protection provided by remoteness.

5. Track reburial locations to provide oversight and 

continued protection from management activities that 

would be destructive, including emergency activities. 

Reburial locations should be recorded in a secure 

corporate database to enable review of reburial locations 

when projects are planned and emergency undertakings 

occur to protect reburials in the long term. Reburial 

locations can be shared with Tribes who requested or 

were a part of the reburial.

6. Maintain confidentiality using the 2008 Farm Bill FOIA

exemption and any other applicable legal authorities to 

keep information about the location and reburial details 

confidential. 

7. Tribes may consider reburial locations as sacred 

sites. If so, site setting may play a role and continued 
Tribal Cultural and Heritage Cooperation Authority Technical Guide 33

access may be necessary, either of which may affect 

management options.

8. Include objectives for the proper management of known

sacred sites during Forest Plan revision, as outlined in 

FSH 1909.12, 23.23g (2)(c). These objectives are to be 

developed in consultation with the appropriate Tribe(s). 

This may include identifying appropriate management 

areas and desired future conditions that are aligned with 

avoiding ground disturbance at reburials.

When Tribes are making reburial requests to Forest 

Service forests, the following information, provided 

in writing, would facilitate the Forest Service’s 

consideration of the request—

1. A request to the Forest Service can be made by the 

Tribal Historic Preservation officer, NAGPRA officer, 

or elected head of a federally recognized Tribe. The 

request should be written and can be submitted either 

by physical letter or by email from an official Tribal 

government email account. The request can be made 

to the forest supervisor or area manager or the Tribal 

Relations staff on the unit. If the request is made of unit 

staff, they should immediately share the request with the 

forest supervisor.

2. In the written request, the Tribe (or Lead Tribe if several 

Tribes are involved) should provide key information 

requested by the Agency, including the Tribe(s) making 

the request, the number and original location of the 

burials, how they were returned to the Tribe, and any 

other relevant information.

3. Upon approval of the reburial request by the Forest

Service, the Forest Service and the requesting Tribe will 

work together to develop an MOU.

Case Studies

The following scenarios are actual cases. The identities 

of the parties, both Tribal and agency, have been removed 

from these descriptions of events in order to maintain 

confidentiality. Additional information regarding specific 

cases is available through the Office of Tribal Relations.

Common authorities applied in each case are as follows, 

with additional authorities or explanatory notes found under 

individual cases—

• Archaeological Resources Protection Act, (section 9) 

along with NAGPAP, NHPA, Cultural and Heritage 

Cooperation Authority, (CHCA) include provisions that 

allow sensitive cultural information to be withheld from 

the public. Information about the location, character, 

or ownership of a site can be kept in confidence if such 

disclosure will risk or harm the site, impede the use of 

the site, or cause a significant invasion of privacy.

• CHCA authorizes reburial on NFS lands.

• NAGPRA, which provides a process for Federal

agencies to return certain Native American cultural 

items—human remains, funerary objects, sacred objects, 

or objects of cultural patrimony—to lineal descendants, 

and culturally affiliated Indian Tribes and Native 

Hawaiian organizations.

• NHPA, which requires agency officials to consult with 

Indian Tribes concerning the effects of undertakings on 

historic properties of traditional and cultural importance 

to Indian Tribes.

Scenario 1: Reburial of Multiple Sets 

of Native American Remains and 

Associated Funerary Objects

A formal request by Indian Tribes for compliance with 

NAGPRA initiated a multiyear program of work. The 

human remains, associated funerary, and unassociated 

funerary objects had been removed from lands currently 

managed by the forest. They were removed during 19th 

and 20th century archaeological investigations conducted 

to aid in project implementation. After repatriation and in 

consultation with the Indian Tribes, it was mutually agreed 

that the reburials would occur in three individual locations 

across the forest. The locations of the reburials were 

determined based on areas from which the remains were 

originally removed. This scenario is exceptional for the 

large number of remains and associated funerary materials, 

and the duration of associated events.

Issues Under Consideration

The forest made a commitment to two Indian Tribes 

to rebury the remains of their ancestors exhumed from 

forest managed lands over the past century. The forest 

and regional office agreed that it is appropriate to pay 

Tribal cultural advisors who perform the ceremonies 

necessary to rebury the remains. To assist in maintaining 

confidentiality and to increase the Indian Tribe’s confidence 

level regarding sensitivity and protection, a Tribal backhoe 

operator was employed.

The complex system of payment through the agency’s 

acquisition process created roadblocks. Following the 

completion of a year’s work on reburial, both the Tribal 

cultural advisor and backhoe operator expected immediate 

payment. The cultural advisor is well into his 80s and 

had never held a bank account. The backhoe operator is 

retired. These individuals had neither a Dun & Bradstreet 
34 Tribal Cultural and Heritage Cooperation Authority Technical Guide

Number (DUNS),1 which is typically used for government 

contracting, nor even basic access to internet services. 

The reservation is extremely remote; many homes lack 

utilities, which are common in greater society. The cultural 

advisor was eventually paid by check 9 months after he had 

performed the 2010 ceremony. The backhoe operator was 

not paid for either year’s work until 30 days after the 2011 

reburial was completed for both years.

To prevent another delay of payment, the Forest Tribal 

Relations Program Manager went to the Cultural 

Preservation Office to work one-on-one with the individuals 

to set them up as contractors. It was later realized, however, 

that the contracting process would create a further delay 

in payment because the required bank account and routing 

number to release the funds did not exist. Payment to 

both individuals was under $2,500, which is the authority 

threshold of the purchasing agent, so in this case, the 

regional office and forest agreed to allow the purchasing 

agent to pay the funds directly by check following 

receipt of an invoice. Please note that Washington Office 

authorization is required for any payment amount by check 

greater than $2,500 in order to prevent similar situations 

faced by the forest purchasing agent.

The Indian Tribe wants protection of the reburial location 

in perpetuity. It has proposed the Forest Service provide 

an easement to the Indian Tribe to ensure any future Forest 

Service action at this location would require advanced 

Tribal approval. The forest will investigate the feasibility 

of this proposal and continue to consult with the Indian 

Tribe on this concept. The forest archaeologist updated the 

site record and map to include the reburial location within 

the existing archaeological site boundary. Other options 

for protection could be a determination of eligibility to 

the National Register and to formally nominate the site. A 

National Register listing, or even an Agency determination 

of eligibility for listing, for this site would provide 

additional consultation and analysis, if any future proposed 

action is considered for this area.

Actions

The reburial included three basic areas of work—

Consultation

Seven meetings and field trips in 2010 and six meetings 

and field trips in 2011 were held to determine locations, 

schedules, cultural protocols, and processes. Program 

managers also participated in teleconferences with regional 

staff to facilitate research of where remains were originally 

located and to document previous consultations and internal 

decision making. A ground-penetrating radar specialist 

and technology were needed to determine adequate depth 

and potential to disturb other resources and to aid in 

consultation.

NEPA Compliance

The process includes but is not limited to: (1) developing 

the proposed action; (2) analyzing Geographic Information 

System (GIS) data and associated maps; (3) drafting the 

project summary sheet; (4) conducting effects analysis 

for wildlife, water and soil, and cultural resources; 

(5) drafting the decision memorandum; and (6) filing 

logistical requirements for maintaining and archiving 

project documentation. Six individuals were needed for the 

analysis for this reburial.

Reburial

A Tribal consultant was needed to ensure appropriate 

cultural protocols were followed, to prepare ceremonial 

items for the dead, and to help spiritual transition after the 

reburial. At the reburial site, heavy equipment was used 

to dig the trench for the reburial. Bedding material and a 

dump truck that hauled in rock for added security of the 

reburied remains were used. A contract was developed for 

the reburial in consultation with the Indian Tribes. Program 

managers or specialists and other employees helped to 

unpack, unload, place in the burial pit, and lay bedding 

material over human remains and items. To prepare for 

the fiscal year (FY) 2012 reburial, the forest dug two test 

trenches adjacent the FY 2011 reburial area to ensure 

additional subsurface remains would not be disturbed.

Statutory and Other Authorities and Policies Applied

Archaelogical Resources Portection Act (ARPA), (section 

9), NAGPRA, NHPA, and CHCA.

Outcomes

The Indian Tribe requested to rebury the remains adjacent 

to an existing prehistoric archaeological site. The Forest 

Service had permitted the human remains and artifacts to 

be removed from this site in the late 1920s, and a portion of 

the remains reburied are from that activity.

The Indian Tribe requested no additional sub-surface 

protection for the reburied remains (such as boulders or 

rebar to prevent any future attempt to dig in this area) to 

ensure that the remains “naturally deteriorate and return to 

the earth.” This was a departure from the reburial during 

FY 2010. This reburial location is adjacent to a road with 

daily traffic, which affords a level of additional surveillance 

and protection. The Indian Tribe made a request to conduct 

a ceremony at the forest with Forest Service assistance.

The reburial is legally protected under the provisions of 

the ARPA. Additional protection will include an updated 

1

 A DUNS is a nine-digit number that is unique to a company and used to create a business credit file, similar to how a Social Security number is used to 

identify personal credit reports. The Federal Government uses the DUNS to track how Federal money is allocated.
Tribal Cultural and Heritage Cooperation Authority Technical Guide 35

archaeological site record expanding the site boundary to 

include the reburial locations for FY 2011, FY 2012, and 

FY 2013. The site is on the forest’s archaeological sitemonitoring program and is monitored throughout the year. 

In the first month following the reburial, the frequency of 

site monitoring was increased to daily observations. The 

frequency of monitoring was subsequently decreased to 

weekly, which will continue year-round.

Lessons Learned

During 2010 and prior to this reburial, small numbers (one 

to two sets) of human remains had been sent to and stored 

in forest offices for reburial. For this reburial, several 

institutions sent human remains and objects to the forest 

supervisor’s office. As the forest began receiving shipments 

from the various repositories, Tribal members employed as 

mail clerks came in contact with the reburial items. Contact 

with human remains is culturally forbidden for these 

Tribal peoples. Arrangements were made for temporary 

storage at additional cost to securely house the incoming 

shipments. As a result of the building being “contaminated 

by the dead” a cleansing ceremony was conducted by a 

medicine man who was paid for his services. The forest 

also authorized affected employees administrative leave for 

separate cleansing ceremonies. Reburial items are now sent 

to an alternative location at a museum to prevent this from 

happening again in the future.

During 2011, due to the magnitude of the collection, 

the reburial unexpectedly took 2 full days to complete. 

Reburial began in the morning of the first day and, by 

sunset, it was apparent that still many more hours of work 

were necessary.

During the backhoe operations to cover the exposed 

remains in the burial pit, the backhoe suffered a mechanical 

failure resulting in total breakdown. A second loader was 

needed to finish covering the exposed remains. Just before 

nightfall, the original backhoe was repaired and ready for 

use the next morning. Since the burial pit was partially 

exposed to accommodate additional artifacts and remains 

overnight, law enforcement officers kept the area secure.

Problems in issuing timely payments made to Tribal helpers 

were eventually alleviated through getting checks, rather 

than requiring DUNS and direct deposit bank accounts. 

The delays could have been reduced or eliminated if 

Forest Service procurement and other personnel had been 

knowledgeable and if procurement personnel had been 

involved from the beginning of the process. 

Scenario 2: Reburial by Tribal Entities 

on Tribal Lands

Contractors discovered a site in 1994. During additional 

work at the site, a spear point and the discovery of a human 

jaw, pelvis, and vertebra were discovered. Upon discovery 

of the human remains, work ceased, and the District 

Archaeologist took possession of all the human remains 

and cultural materials and notified four Tribal presidents.

Issues Under Consideration

The discovery triggered immediate government-togovernment consultation. Out of this initial discovery grew 

a meaningful relationship between the Forest Service and 

the affected Tribal governments that continues to strengthen 

over time. In the week after the discovery, the four Tribal 

councils held a meeting and passed resolutions supporting 

research and further excavations. Researchers immediately 

expressed interest in this opportunity to conduct forensic 

and DNA studies. Throughout the research process, 

consultation remained ongoing and focused primarily on 

the return and reburial of the remains and cultural items.

Actions

The reburial included three basic areas of work—

Consultation

Consultation with Indian Tribes began the same day the 

human remains were discovered. Through each step of the 

process leading up to reburial, the forest consulted with 

the Tribes on research proposals, subsequent research 

activities, and partnerships with other Native entities for 

video documentation, media coverage, and professional 

paper presentations. Researchers secured Tribal approval 

and research funding to initiate immediate excavation 

and provided for American Indian student internships. 

Throughout the project, the scientists made annual 

presentations to share information with the local Tribal 

communities. The District Archaeologist attended Tribal 

council meetings on a regular basis and provided updates 

on the status of the work. Tribal council members identified 

the project as a Tribal priority, so the forest worked to 

ensure all progress reports and research information was 

shared with the Tribes. This ongoing consultation process 

spanned 11.5 years. This relationship is a model for how 

scientists, Indian Tribes, and Federal agencies can work 

together.

ARPA Compliance

Compliance with ARPA included a permit and inspection 

process.

Reburial

The forest transferred custody of the human remains to the 

Tribal governments. A reburial committee led by Tribal 

governments (with participation of the forest and other 

Indian entities) planned a 2-day event to honor the ancient 

ancestor and celebrate the knowledge he had passed on. 

The remains were reburied on Tribal lands. Approximately 

500 guests attended the celebration.
36 Tribal Cultural and Heritage Cooperation Authority Technical Guide

Statutory and Other Authorities and Policies Applied

NAGPRA, NHPA, and CHCA. ARPA establishes a permit 

process for the excavation or removal of any archaeological 

resources from Federal and Indian lands.

Outcomes

Once the research was completed, the forest, having 

received a request from the Indian Tribes and after public 

notice in compliance with NAGPRA, transferred custody of 

the human remains to the Tribal governments. This marked 

the first time since passage of NAGPRA that remains of 

this antiquity have been transferred to Native American 

claimants.

A reburial committee led by the Tribal governments 

(with participation by the forest) considered a variety of 

reburial locations that included: onsite, in an established 

community cemetery, and other Forest Service locations. 

The committee finally determined that the burial would 

occur on Tribal land. Tribal members performed a formal 

ceremony, followed with a 2-day celebration.

Lessons Learned

Design solutions to address the specific or unique needs of 

an Indian Tribe and Tribal communities. The reburial of 

ancestral remains is an emotional ceremony, often requiring 

considerable discussion about specific protocols between 

family, clan, spiritual leaders, and Tribal members.

The ongoing government-to-government consultation and 

information sharing initiated a special relationship with the 

four Tribal councils and communities. This relationship 

continues to grow stronger. The reburial event honored the 

endurance and resilience of modern Tribal communities, 

celebrated the knowledge of their ancient ancestor’s legacy, 

and underscored what can be achieved through successful 

Federal-Tribal partnerships. 

Scenario 3: Reburial of Remains 

Absent NAGPRA

During the late 1990s, a search for a person lost in a 

boating accident led to discovery in a rock shelter of human 

skeletal remains.

Issues Under Consideration

The rock shelter is on Forest Service lands but on an island 

whose ownership was split between the Forest Service and 

a village corporation. Oral traditions confirm that smallpox 

victims were buried at the site. State law enforcement 

officials and Forest Service personnel differed in their 

viewpoints regarding the disposition of the human remains.

Actions

The discovery was reported to the State Troopers, who 

in turn contacted the District Archaeologist. The District 

Archaeologist assisted with exhumation of the skeleton as 

potential evidence and determined that the skeleton was 

older than the boating accident, which had occurred 5 years 

earlier. The archaeologist encouraged the troopers to see it 

as an archaeological site and leave it in situ. The remains, 

however, were ultimately removed to an evidence locker 

within the community.

The remains were eventually repatriated to the local Indian 

Tribe and, after Tribal consultation with the Forest Service, 

were reburied in the rock shelter from which they were 

removed. 

Statutory and Other Authorities and Policies Applied

The CHCA was not in force at the time of this action. This 

case, however, does serve as an example of the Forest 

Service following what is now the spirit and intent of that 

Authority CHCA.

Outcomes

The reburial included three basic areas of work—

Consultation

Tribal consultation was accomplished to determine the 

desired disposition of the remains. The Indian Tribe 

requested that the Forest Service would reinter the human 

remains.

NAGPRA Compliance

No formal NAGPRA notifications or process were 

conducted in this case.

Reburial

With assistance from a forensic specialist, measurements 

and observations eventually demonstrated to the 

troopers that the remains were old and were within an 

archaeological site. At that point, the troopers returned the 

remains to the Indian Tribe. Following Tribal consultations, 

the remains were placed in a locally constructed cedar 

box and reburied in the rock shelter from which they were 

removed. Large rocks were placed over the box, and Forest 

Service employees monitored the site twice a year after 

reburial. The lack of additional ground disturbance resulted 

in a NHPA determination of “No Effect.”

Lessons Learned

Tribal consultation can often expedite the reburial process. 

Special forensic expertise may be essential to the process. 

Consultation and coordination with Indian Tribes and other 

cooperators regarding the reburial is mutually beneficial 

to all partners and creates opportunities for productive 

government-to-government relations. Reburial of human 

remains outside of NAGPRA authority is possible under the 

CHCA if the basic requirements of the CHCA are met.
Tribal Cultural and Heritage Cooperation Authority Technical Guide 37

Scenario 4: Unresolved Case

In 1997, a human cranium was illegally excavated on an 

island located within a ranger district, resulting in a felony 

ARPA conviction.

Issue Under Consideration

The cranium has been in a law enforcement evidence locker 

since the beginning of the case. A Tribe requested that the 

cranium be reburied.

Action

Planning for the reburial included three basic areas of 

work—

Consultation

Tribal consultation has been ongoing, and it was 

determined that the Forest Service would continue to 

safeguard the human remains until the human remains are 

returned to their place of origin.

ARPA Compliance:

An individual removed the human remains, and 

subsequently an ARPA, case developed and the individual 

was convicted.

Reburial

The human remains will be reburied at the location of 

origin.

Statutory and Other Authorities and Policies Applied

NAGPRA, NHPA, and CHCA.

Outcomes

Ongoing Tribal Consultation has occurred, and the reburial 

details have been determined.

Lessons Learned

Patience is key to work through these processes, as Tribal 

consultation can often be lengthy. Consultation and 

coordination with Indian Tribes and other cooperators for 

reburial benefits all partners and creates opportunities for 

productive government-to-government relations on many 

fronts. Tribes or lineal descendants may not have to have 

physical possession of human remains for those remains to 

be considered repatriated. Disposition can be determined in 

consultation.

Scenario 5: Reburial in Original 

Location

Human remains and funerary objects were removed from a 

rock shelter located on a national forest and determined to 

be within the territory of an Indian Tribe. 

Issues Under Consideration

Consultation occurred with seven Indian Tribes and Tribal 

entities that determined that repatriation of the human 

remains and funerary object would be the responsibility of 

a designated entity, provided that no additional claimants 

came forward. No additional claimants were identified, and 

the remains were repatriated and transferred to the entity 

under the terms of NAGPRA. The Forest Service unit 

continued to curate the remains in response to the Tribal 

request.

Actions

The district ranger consulted with the State Historic 

Preservation Officer (SHPO) regarding Forest Service 

intent to reinter the remains and funerary objects at the site 

of origin within a previously excavated unit. The Forest 

Service determined the proposed action would result in 

“no adverse effect” to the archaeological site. The SHPO 

concurred with that determination.

The reburial included three basic areas of work—

Consultation

A federally recognized Indian Tribe requested that the 

remains be taken back to the site and further stated that the 

work was “to be completed by the FS archaeologists with 

care and decency in cooperation with a representative of the 

tribe to witness the final reburial.”

NAGPRA Compliance

A Notice of Inventory Completion published in the Federal 

Register provided notice that the forest had completed 

an inventory of human remains and associated funerary 

objects. This notice included an assessment of the human 

remains, representing a minimum of 18 individuals, and 

associated funerary items. Repatriation of the human 

remains and cultural objects followed.

Reburial

A Tribal representative joined the district ranger, district 

archaeologists, and a native liaison to rebury the human 

remains and funerary objects at the location from which 

they were excavated.

Statutory and Other Authorities and Policies Applied

NAGPRA, NHPA, and CHCA.

Outcomes

Forest Service archaeologists and the Tribal representative 

returned to the site, where the human remains and cultural 

items were placed within an excavated hollow in the 

ground, which was backfilled and returned to a natural 

appearance.
38 Tribal Cultural and Heritage Cooperation Authority Technical Guide

Lessons Learned

Consultation and coordination with Indian Tribes and other 

cooperators for reburial benefits all partners and creates 

opportunities for productive government-to-government 

relations on many fronts.

Scenario 6: Honored Requests for 

Reburial of Remains From Off-Forest 

Locations 

A federally recognized Indian Tribe made multiple requests 

to a national forest to rebury remains that come from 

off-forest locations.

Issues Under Consideration

Multiple remains originating from two different locations 

off of NFS lands were associated with traditional historic 

or precontact towns of the Indian Tribe. Federal funding 

was involved with the original excavation of these remains. 

The sites from which the remains had been removed were 

adjacent to NFS lands. 

Actions

The regional forester honored the request for reburial of 

the remains that had originated very close to the forest, and 

protocols for the reburial were established in an MOU.

Statutory and Other Authorities and Policies Applied

NAGPRA, NHPA, and CHCA.

Outcomes

Consultation and coordination with Indian Tribes and other 

cooperators for reburial benefits all partners and creates 

opportunities for productive government-to-government 

relations on many fronts. Finding a permanent resting place 

for Tribal ancestors, in accordance with law and policy.

Lessons Learned

Forest Service line officers should use their discretion 

when considering requests for reburial of human remains 

and cultural items. Their discretion includes the ability 

to rebury human remains and cultural items as requested 

by an Indian Tribe when their decision upholds the letter 

and the spirit of section 3053 of the CHCA. In this case, 

the questions surrounding adjacency were resolved by 

recognizing that the site that encompassed the location of 

the original interment is adjacent to forest lands in the sense 

of being reasonably close. This resolution stands in contrast 

to the following scenario.

Scenario 7: Denial of Reburial Request

An Indian Tribe requested reburial of human remains that 

originated from a site located more than 30 miles distant 

from the national forest. A National Historic Landmark is 

within sight of the original burial location. The Indian Tribe 

initially approached both the USDI National Park Service 

(NPS) and another Federal agency for assistance because 

the burial locations were on or near those Federal lands. 

Although local managers were supportive of hosting the 

remains, the request was rejected at higher levels in both 

agencies. The national forest was their third choice.

Issues Under Consideration

Issues included consideration of the original location of 

the burials and any other connection the burials may have 

to NFS lands. The Agency determined that the remains 

originating from more than 30 miles from the NFS lands 

and having no connection to those lands would more 

appropriately be reburied in a location more proximate to 

the original burials than the NFS lands. 

Actions

Additional collaboration with the NPS, which administers 

NAGPRA program for all Federal agencies, may develop 

new NPS policy or legislation on the issue and consider 

reburial of these remains on NPS land.

Statutory and Other Authorities and Policies Applied

NAGPRA, NHPA, and CHCA.

Outcomes

The Indian Tribe’s request for reburial on NFS lands 

was denied based upon the interpretation that the human 

remains and cultural items were from a location that was 

not reasonably close to the forest. Related communication 

with the NPS may lead to broader authorities for reburial.

Lessons Learned

Forest Service line officers should use their discretion when 

making recommendations regarding requests for reburial 

of human remains and cultural items. Regional foresters’ 

discretion includes the ability to turn down requests for 

reburial of human remains and cultural items when their 

decision upholds the letter and the spirit of section 3053 of 

the CHCA.

Having a governmentwide reburial authority would enable 

better accommodation of Tribal requests for reburials.

Scenario 8: Unanticipated Discovery 

and Subsequent Reporting of Native 

American Human Remains by 

Non-Agency Personnel

Cavers reported human remains in a cave on Forest Service 

lands, in about 1988, before NAGPRA was passed and 

before the CHCA.

Issues Under Consideration

The forest archaeologist compiled a team of cavers, 

scientists, and members of the Indian Tribe to discuss how 
Tribal Cultural and Heritage Cooperation Authority Technical Guide 39

to proceed with investigations and reburial. Issues included 

recreational and public access, human remains, and cultural 

resources, as well as relationships between the Forest 

Service and Tribes, and between the Forest Service and 

other organizations.

Actions

After consultation and all partners came to agreement, 

site studies were accomplished and journalists published 

the narrative. The remains were respectfully reburied in 

the cave system, and a Tribal spiritual leader conducted a 

ceremony. A cave gate was constructed to secure the site 

from disturbance.

Statutory and Other Authorities and Policies Applied

NHPA.

Outcomes

This discovery, the reburial event, and the considerate 

manner in which it was accomplished prior to NAGPRA, 

served to enhance Tribal relations with the forest.

Lessons Learned

In this case, the outstanding lesson was that the 

unanticipated discovery and subsequent reporting of Native 

American human remains by nonagency personnel can be 

the impetus for a consultation process and resolution that is 

beneficial to all involved.

Scenario 9: Reburial of Remains From 

Lands Now in Other Ownership

An archaeological site, known to contain human remains 

since the 1970s, is located within a modern community. The 

community began under Forest Service permit as a logging 

camp and eventually became an incorporated community.

Issues Under Consideration

Although the site was in Forest Service ownership 

(discovery to about 1985), several partial human skeletons 

were collected. In 1985, the State took over ownership and 

the State Office of Archaeology conducted extensive test 

excavations and recovered additional partial skeletons. In 

1997, a sewer and waterline project disturbed an additional 

three burials that were previously undisturbed by adjacent 

backhoe work. The State then divided the 11-acre site 

into three parcels. It designated about one-third of the 

site as totally disturbed and conveyed that parcel to the 

city. It has since been developed for housing and business 

purposes. The three burials discovered in the 1997 sewer 

and waterline project were in this parcel designated 

(A). The middle parcel (B) was deemed eligible for 

conveyance to the city if a significant data-recovery project 

(archaeological excavation) was conducted. Parcel (C) was 

determined to be relatively undisturbed and was held in 

State ownership in perpetuity. 

Actions

These excavations resulted in recovery of additional Native 

American human remains. Several episodes of reburial 

have occurred in the community. NAGPRA consultation 

occurred for repatriation of the remains in 2000. In 2000, 

the Forest Service spearheaded an effort to collect all 

remains recovered up until that point. In consultation with 

the affected Indian Tribe in 2007, the District reburied those 

remains in one of the State’s decommissioned test pits. (A 

test pit is typically used at construction sites during the 

initial excavation process to examine subsurface conditions 

and soil content.) In 2007, the remains collected in 2006 

were reburied in the same location. The later reburials were 

not connected with any formal NAGPRA actions.

Statutory and Other Authorities and Policies Applied

NAGPRA, NHPA, and CHCA.

Outcomes

That reburial site now has a white picket fence and a 

commemorative plaque and is maintained by the city on 

State land.

Lessons Learned

Patience is key to working through the process, and 

Tribal consultation can often be lengthy. Consultation and 

coordination with Indian Tribes and other cooperators 

for reburial benefits all partners and creates opportunities 

for productive government-to-government relations on 

many fronts. In this case, the Forest Service facilitated 

the reburial effort when no NFS lands were involved, and 

thereby enhanced Tribal relations.
40 Tribal Cultural and Heritage Cooperation Authority Technical Guide

Appendix D—Templates for Temporary Closures

Example of a Properly Formatted Order

SMOKEY BEAR NATIONAL FOREST

Pine Tree Ranger District

Anytown, USA

Order No. RR-YY-XX-XX

FOREST ORDER

Temporary Closure for Traditional and Cultural Purposes

Pursuant to 16 USC 551, 25 USC 3054, and https://www.gpo.gov/fdsys/granule/CFR-1999-title36-vol2/CFR-1999-title36-

vol2-part261/content-detail.html.50(a) and 261.50(b), the following acts are prohibited on the Pine Tree Ranger District, 

Smokey Bear National Forest:

Going into or being in the Old Baldy and Sacred Falls area, as shown on the attached map [36 CFR 261.53(g)].

This area will be closed to the general public from 6:00 a.m., Friday, April 20, through 6:00 p.m., Thursday, April 26, 

2012, for the privacy of Tribal activities for traditional and cultural purposes.

The following persons are exempt from this Order—

1. Any enrolled member of a federally recognized Indian Tribe, as authorized by the [insert name of federally recognized 

Indian Tribe or Tribal Commission or Intertribal Council].

2. Any Federal, State, Tribal or Local Law Enforcement Officer or member of an organized rescue or fire fighting force in 

the performance of an official duty.

Executed in Anytown, USA this XX day of April 2012.

___________________________________________

JANE SMITH

Forest Supervisor

Smokey Bear National Forest

Violation of these prohibitions is punishable by a fine of not more than $5,000 for an individual or $10,000 for an 

organization, imprisonment for not more than 6 months, or both [16 USC 551, 18 USC 3559 and 3571].
Tribal Cultural and Heritage Cooperation Authority Technical Guide 41

Exhibit D.1—Example of Appropriate Onsite Posting
42 Tribal Cultural and Heritage Cooperation Authority Technical Guide

Appendix E—Templates for the Provision of Forest 

Products

Exhibit E.1—

Tribal Self-Regulation Agreement

(Excerpted from the Memorandum of Understanding 

Regarding the Recognition and Implementation of 

Tribal Ceded Territory Rights Guaranteed by the 

Treaties of 1836, 1837, and 1842 or “GLIFWC MOU.”)

This Tribal Self-Regulation Agreement [hereafter SelfRegulation Agreement] is entered into as part of the 

parties’ ratification of the [Title or Name of MOU] 

[hereafter MOU]. Specifically, the Self-Regulation 

Agreement implements the MOU’s provisions regarding the 

Administration of Justice outlined in MOU section VI.E.

1. Parties. The entities that may be parties to the SelfRegulation Agreement are the same as those that may be 

parties to the MOU, as set forth in MOU section II.

2. Incorporation of MOU’s Provisions. The MOU, as 

may be amended from time to time, is specifically 

incorporated by reference into the Self-Regulation 

agreement as if set forth in its entirety. The SelfRegulation Agreement shall be construed consistent 

with the purposes and provisions of the MOU and, 

except as otherwise specifically provided herein, terms 

in the Self-Regulation Agreement shall have the same 

definition as provided in the MOU.

3. Scope and Purposes of the Self-Regulation 

Agreement. The Self-Regulation Agreement pertains to 

the administration of justice regarding the Indian Tribes’ 

exercise of their treaty-reserved ceded territory rights. 

Its primary purposes are to:

a. Facilitate the exercise of the Indian Tribes’ selfregulatory authority over the exercise of those rights; 

and

b. Prevent dual prosecution in tribal and federal forums

stemming from conduct regulated by an Indian 

Tribe’s Off-Reservation National Forest Gathering 

Code that complies with the MOU’s provisions 

[hereafter Complying Tribal Code].

4. Enforcement and Prosecution of Alleged Violations 

of Tribal Law. The parties acknowledge that conduct 

governed by a Complying Tribal Code also might be 

governed by Federal statutes or regulations which the 

FS is authorized to enforce in Federal forums. Where 

the underlying conduct or act would be a violation of 

a Complying Tribal Code and of a federal statute or 

regulation, the parties agree that the Indian Tribe’s 

court is the preferred forum for dealing with the alleged 

violation. Specifically, the parties agree:

a. Except as provide in subs. b, any conduct or act

which is an alleged violation of a Complying Tribal 

Code shall be administered and prosecuted in 

accordance with the provisions of the Complying 

Tribal Code, provided:

i. The Complying Tribal Code is in force at th

time of the alleged violation; and

ii. The Indian Tribe maintains a Tribal court with 

jurisdiction to enforce the Complying Tribal 

Code.

b. After consultation with the affected Indian Tribe, 

the FS may initiate a Federal enforcement action 

where the underlying conduct is egregious in nature. 

Factors to determine egregiousness shall include: 

the type of conduct involved; the amount of natural 

resources illegally taken; the nature and extent of the 

natural resource damages caused by the illegal act; 

considerations for specific and general deterrence; 

and considerations for compensating those persons 

or entities harmed or damaged by the conduct or act.

5. Agreement Effective Date/Termination. The SelfRegulation Agreement shall take effect when at least 

one Indian Tribe, the FS’s Eastern Region and the 

Region’s Law Enforcement and Investigations have 

properly ratified it in accordance with their respective 

governmental procedures. The Self-Regulation 

Agreement shall be binding as to and between those 

entities that ratify it upon notice to the other parties of 

their ratification as provided in MOU section IX.

The Self-Regulation Agreement shall automatically 

terminate at such time when the requisite combination 

of parties to make it effective no longer exists, or when 

the MOU terminates.

6. Dispute Resolution. The parties agree that 

any controversies, disputes, differences, or 

misunderstandings arising out of the Self-Regulation 

Agreement shall be addressed as disputes under the 

MOU and handled in accordance with the MOU’s 
Tribal Cultural and Heritage Cooperation Authority Technical Guide 43

provisions. The agreement should not be interpreted 

as a waiver of sovereign rights or immunities of the 

respective Indian Tribe(s).

7. Amendment of Agreement. The parties agree that 

amendments to the Self-Regulation Agreement shall be 

addressed in accordance with the provisions of MOU 

section VI.F.

8. Required Notices/Parties’ Designated 

Representatives. The parties agree that the provisions 

of MOU section IX shall apply to Notices of Ratification 

of and Withdrawal from the Self-Regulation Agreement 

and to the parties’ designation of representatives 

regarding the Self-Regulation Agreement.

Exhibit E.2—

Tribal Timber Harvest Framework Agreement

(Excerpted from the Memorandum of Understanding 

Regarding the Recognition and Implementation of 

Tribal Ceded Territory Rights Guaranteed by the 

Treaties of 1836, 1837, and 1842 or “GLIFWC MOU.”)

This Tribal Timber Harvest Framework Agreement 

[hereafter Timber Harvest Framework] is entered into 

as part of the parties’ ratification of the [Title or Name 

of MOU] [hereafter MOU]. Specifically, the Timber 

Harvest Framework implements the MOU’s provisions 

regarding Natural Resource Harvest Management outlined 

in MOU section VI.C. It is through the implementation 

of the Timber Harvest Framework that the Forest Service 

exercises its authority pursuant to 16 USC 477; 25 USC 

3055; and the treaties between the Unites States and 

[Tribe(s)], specifically the Treaty of XX, 7 Stat 491, the 

Treaty of 1837, 7 Stat. 536, and the Treaty of 1842, 7 Stat. 

591.

1. Parties. The entities that may be parties to the Timber 

Harvest Framework are the same as those that may be 

parties to the MOU, as set forth in MOU section II.

2. Incorporation of MOU’s Provisions. The MOU, as 

may be amended from time to time, is specifically 

incorporated by reference into the Timber Harvest 

Framework as if set forth in its entirety. The Timber 

Harvest Framework shall be construed consistent with 

the purposes and provisions of the MOU, and, except 

as otherwise specifically provided herein, terms in 

the Timber Harvest Framework shall have the same 

definition as provided in the MOU:

a. For the purpose of this Timber Harvest Framework, 

timber shall be defined as any “tree” as defined in 

the attached Model Code that is not a “lodgepole” or 

“firewood” as defined in the attached Model Code.

3. Scope and Purposes of the Timber Harvest 

Framework. The Timber Harvest Framework pertains 

to the Natural Resource Harvest Management principles 

regarding the Tribes’ exercise of their treaty-reserved 

ceded territory rights. Its primary purposes are to:

a. Facilitate the exercise of the Tribes’ self-regulatory 

authority over the exercise of those rights through 

the implementation of a timber harvest management 

system; and

b. To detail the process pertaining to the Tribes’ 

implementation of the harvest of timber and salvage 

timber for domestic and non-commercial traditional 

and cultural purposes.

4. Timber Harvest Conditions. The Parties acknowledge 

the following conditions to the Timber Harvest 

Framework:

a. Timber and salvage timber harvested pursuant to 

the Timber Harvest Framework may not be used for 

commercial purposes.

b. The harvesting of timber and salvage timber pursuant 

to the Timber Harvest Framework must comply with 

relevant land management plans, the NEPA, and all 

other applicable laws and regulations.

c. The harvesting of timber and salvage timber

pursuant to the Timber Harvest Framework shall be 

in compliance with 36 C.F.R. 223.8.

d. The harvesting of timber and salvage timber

pursuant to the Timber Harvest Framework may be 

conditioned or denied for reasons including:

i. Protecting public health and safety,

ii. Preventing interference with FS and/or tribal

activities,

iii. Complying with federal, tribal, and state laws

and regulations,

iv. Ensuring the sustainability of a forest product

or tribal sensitive species,

v. Otherwise protecting ceded territory land and

resources.

5. Timber Harvest Framework Principles. The parties 

agree to the implementation of the following Timber 

Harvest Framework:

a. A Tribe initiating a request for the harvest of timber 

or salvage timber for domestic or non-commercial 

traditional and cultural purposes shall inform the 

Voigt Intertribal Task Force [hereafter VITF] of 

such intent for the purpose of conducting intertribal 

coordination.

b. Once the VITF has conducted the proper intertribal 

coordination, the Commission shall send a letter to 

the Tribe of such intent, thereby notifying it whether 

there is an intertribal conflict with the request.
44 Tribal Cultural and Heritage Cooperation Authority Technical Guide

c. If the VITF determines that there is no intertribal 

conflict with a request, the Commission staff 

shall notify the Forest Service that the VITF has 

conducted intertribal coordination pertaining to the 

Tribe’s initial intent to harvest timber or salvage 

timber for domestic or non-commercial traditional 

and cultural purposes and that there is no intertribal 

conflict pertaining to the request. Thereby, the 

notification shall include a request to consult on 

the Tribe’s initial desire to make a request for the 

harvest of timber or salvage timber for domestic or 

noncommercial traditional and cultural purposes.

d. The Commission, in consultation with the Tribe, 

shall set up a meeting with the FS, the Tribe and the 

Commission to discuss the specifics of the potential 

formal request, which shall include the following:

1) Potential locations where the Tribe may desire to 

harvest;

2) Approximate number of trees the Tribe desires to 

harvest;

3) The species and size of timber the Tribe desires 

to harvest;

4) The approximate year and season when the Tribe 

desires to harvest;

5) The purpose for which the timber or salvage

timber will be put:

i. For domestic purposes, as this term is defin

in the attached Model Code.

ii. For non-commercial traditional and cultural

purposes, as this term is defined in the 

attached Model Code.

e. The Forest Service, the Tribe, and the Commission 

shall set up a site evaluation(s) to determine the 

feasibility of the proposed harvest location(s). 

Proposed harvest locations shall be agreed to by 

consensus of all parties.

f. The Tribe shall submit a formal “Letter of Request 

of the Tribe for Timber Harvest Purposes” to the 

District Ranger. The letter of request shall include:

1) The location of harvest;

2) The approximate number of trees to be

harvested;

3) The species and size of timber to be harvested;

4) The approximate year and season the timber

shall be harvested; and

5) The purpose for which the timber or salvage

timber will be put:

i. For domestic purposes, as this term is defin

in the attached Model Code.

ii. For non-commercial traditional and cultural

purposes, as this term is defined in the 

attached Model Code.

The Tribe shall provide a courtesy copy (cc) of 

this letter of request to the Forest Supervisor, 

the Tribal Liaison for the ChequamegonNicolet, Hiawatha and Ottawa National 

Forests, the VITF, and Commission staff.

g. The Forest Service in consultation with the Tribe and 

the Commission shall develop an area of operation 

map.

h. The FS in consultation with the Tribe and the 

Commission shall develop the necessary decision 

and analysis documents, including those required by 

the NFMA and the NEPA. If either the Tribe or the 

Commission has the capacity, they may exercise the 

option to jointly develop the necessary decision and 

analysis documents for the requested site location.

i. The Commission, the Tribe and the FS shall develop 

the specific provisions of the “Operating Plan.”

j. The Tribe shall issue a tribal permit to the “member” 

or “tribal entity” as defined in the attached Model 

Code.

k. The Tribe in consultation with the Commission and 

the FS shall conduct the necessary monitoring and 

evaluation of the timber harvest operation.

l. The Tribe in consultation with the Commission 

shall provide the FS with a final notification that the 

filed operations on the timber harvest operation are 

complete.

m. The Tribe in consultation with the Commission shall 

provide the FS with a final briefing (success story) 

on the results of the timber harvest request.

6. Agreement Effective Date/Termination. The Timber 

Harvest Framework shall take effect when at least 

one Tribe and the Forest Service Eastern Region have 

properly ratified it in accordance with their respective 

governmental procedures. The Timber Harvest 

Framework shall be binding as to and between those 

entities that ratify it upon notice to the other parties 

of their ratification as provided in MOU section IX. 

The Timber Harvest Framework shall automatically 

terminate at such time when the requisite combination 

of parties to make it effective no longer exists, or when 

the MOU terminates.

7. Dispute Resolution. The parties agree that 

any controversies, disputes, differences or 

misunderstandings arising out of the Timber Harvest 

Framework shall be addressed as disputes under the 

MOU and handled in accordance with the MOU’s 

provisions.
Tribal Cultural and Heritage Cooperation Authority Technical Guide 45

8. Amendment of Agreement. The parties agree that 

amendments to the Timber Harvest Framework shall be 

addressed in accordance with the provisions of MOU 

section VI.F.

9. Required Notices/Parties’ Designated 

Representatives. The parties agree that the provisions 

of MOU section IX shall apply to Notices of Ratification 

of and Withdrawal from the Timber Harvest Framework 

and to the parties’ designation of representatives 

regarding the Timber Harvest Framework.

Exhibit E.3—

Tribal Request for Trees, Timber, or Forest Products

Check List (Recommended for Timber Requests)

The following is an example of the information that is necessary for evaluating and processing an individual Indian 

Tribes’ request for trees, timber, or forest products from National Forest System lands.

R REQUESTING TRIBE TURTLE CREEK BAND OF LENAPE INDIANS

R TRIBAL DEPARTMENT DEPARTMENT OF CULTURAL PRESERVATION

R TECHNICAL CONTACT JANEY SMITH, DIRECTOR (555) 555-1234

R INTER-TRIBAL COORD NORTHERN OHIO INTER-TRIBAL COUNCIL

R RECEIVING UNIT

o REGION

R FOREST FALLEN TIMBER NATIONAL FOREST

R TREES or FP REQUESTED HOUSELOGS FOR TRADITIONAL ROUND HOUSE

R SPECIES RED PINE or JACK PINE

R NO. TREES OR VOLUME 275 TREES

R APPROXIMATE SIZE 9-11” DBH

R LOCATION

R DISTRICT TURTLE CREEK RANGER DISTRICT

R AREA SEE TURTLE CREEK TS MAP

R PURPOSE CERTIFICATION

R NONCOMMERCIAL REQUEST CERTIFIES NONCOMMERCIAL USE

R T&C PURPOSE REQUEST FOR TRADITIONAL ROUND HOUSE 

CONSTRUCTION

o DOMESTIC PURPOSE

o COMMERCIAL PURPOSE

R LEGAL COMPLIANCE

o RESERVED RIGHTS N/A

R FOREST PLAN COMPLIANT WITH STANDARDS & GUIDELINES 

(SEE CH. 5, SEC VII)

R NEPA NEPA- READY PROJECT (TURTLE CREEK EA)

R FREE USE AUTHORITY 25 USC 3055/ 36 CFR 223.15/ 36 CFR 223.8(A)

o REGIONAL FORESTER

R FOREST SUPERVISOR APPROXIMATE VALUE LESS THAN $5,0001

o FOREST OFFICER

o DENIAL CRITERIA NO DENIAL

o PUBLIC HEALTH & SAFETY

o INTERFERE WITH OPERATIONS

o UNLAWFUL

o SUSTAINABILITY

1

 Note: This amount may be increased under the Cultural and Heritage Cooperation Authority. For example, Forest Supervisors (if delegated) have authority 

not to exceed $50,000 in value in any one fiscal year to an Indian Tribe under 36 CFR 223.15(e).
46 Tribal Cultural and Heritage Cooperation Authority Technical Guide

Processing requests for Tribal use of timber and forest products

STEP 1:

FEDERALLY RECOGNIZED TRIBE 

[YES or NO]:

IF YES, GO TO STEP 2

IF NO, THIS IS NOT TRIBAL USE

Check current list of federally recognized Tribes. If individual tribal member, check 

tribal ID, CDIB card, etc.

STEP 2:

IS REQUEST FROM TREATY 

[YES or NO]:

TRIBE IF YES, GO TO STEP 3

IF NO, GO TO STEP 3B

A “treaty Tribe” is a Tribe signatory to the land cession treaty for the area of the 

national forest from where the timber or forest products are to be harvested.

DOES THE TRIBE SELF-REGULATE 

[YES or NO]:

IF YES, TRIBE WILL ISSUE THE 

PERMIT

STEP 3: IF NO, GO TO STEP 4

When the Tribe self-regulates within their ceded territory, they will issue appropriate 

gathering permit, monitor for regulatory compliance, or follow relevant guidelines in 

MOU with the Forest Service.

STEP 3B:

REQUEST FOR SPECIAL FOREST 

PRODUCTS [YES or NO]:

IF YES, GO TO STEP 4B

IF NO, GO TO STEP 5B

REQUEST FOR SPECIAL FOREST 

PRODUCTS [YES or NO]:

IF YES, ALLOW GATHERING 

WITHOUT PERMIT [END]

STEP 4:

IF NO, GO TO STEP 5

Special forest products are defined as products collected from National Forest System 

lands that include, but are not limited to, bark, berries, boughs, bryophytes, bulbs, 

burls, Christmas trees, cones, epiphytes, fence material, ferns, firewood, forbs, fungi 

(including mushrooms), grasses, mine props, mosses, nuts, pine straw, posts and poles 

(tipi poles), roots, sedges, seeds, shingle and shake bolts, transplants, tree sap, rails, 

and wildflowers. 

STEP 4B:

CONSULTATION REQUIRED 

[YES or NO]:

IF YES, GO TO STEP 6

IF NO, ISSUE 2400-8 PERMIT [END]

The Forest Service has agreements with several treaty Tribes requiring that we consult 

with them before authorizing harvest of timber or forest products by non-treaty Tribes.

REQUEST FOR TIMBER [TRIBE or 

TRIBAL MEMBER]:

IF TRIBE, NEGOTIATE BILATERAL 

AGREEMENT [END]

STEP 5: IF FROM MEMBER, NOT ALLOWED

Timber, meaning the cutting of green merchantable trees for saw timber, house logs, 

nonsawlog material removed in log form, pulpwood, telephone poles, etc. Tipi poles and 

other posts and poles are not included as timber.

REQUEST FOR TIMBER [TRIBE 

ONLY]:

TRADITIONAL USE: MAY AUTHORIZE 

[END]

STEP 5B:

COMMERICAL USE: MAY NOT 

AUTHORIZE

May authorize through bilateral agreement or letter of authorization if for 

“non-commercial traditional and cultural purpose;” may be subject to prior notification 

or consultation with any affected treaty Tribe(s).

CONSULTATION or COORDINATION WITH TREATY TRIBES 

STEP 6:

Any time a non-treaty Tribe or non-treaty Tribal member requests timber or forest products 

within the ceded territory of a Tribe with reserved rights within that territory, the Forest 

Service should coordinate with the treaty Tribe or engage in consultation before granting 

the request. Coordination may be at staff level or involve Tribal leadership. Ultimately, the 

line officer will give due consideration to the concerns of the treaty Tribe before making 

the decision to grant the request of the non-treaty Tribe or member.
Tribal Cultural and Heritage Cooperation Authority Technical Guide 47

Sample Framework 3.2: Kaibab 

and Coconino National Forests 

Official Policy on Forest Products for 

Traditional and Cultural Purposes

Introduction

The Kaibab and Coconino National Forests (Forests) 

recognize the importance of providing access to forest 

products to Native Americans for traditional and cultural 

purposes. Current Forest Service policy directs Forests 

to “assist tribal members in securing ceremonial and 

medicinal plants” (FSM 1563.03). The Kaibab and 

Coconino National Forests will accommodate traditional 

use of the Forests by Native Americans provided it 

complies with existing laws and regulations. The 

Forests may amend this policy to address future issues 

in consultation with federally recognized Tribes. This 

policy will become effective on April 1, 2012 and will be 

reviewed every 5 years.

Definition

Traditional and cultural purpose: The term “traditional 

and cultural purpose,” with respect to a definable use, area, 

or practice, means that the use, area, or practice is identified 

by an Indian Tribe as traditional or cultural because of 

the long-established significance or ceremonial nature 

of the use, area, or practice to the Indian Tribe (Food, 

Conservation, and Energy Act of 2008).

Objectives

1) To provide simple, clear, and consistent policy on 

Native American traditional use for both Forests.

2) To accommodate traditional use of the Forests by Native 

Americans.

3) To prevent resource damage and ensure that collection 

of forest products does not result in undesirable impacts 

to natural and cultural resources.

Legal Authority

Existing law, regulation, and policy regarding Native 

American traditional use of Forest Service Land guides this 

policy.

Food, Conservation, and Energy Act of 2008, SEC. 

8105. Forest Products for Traditional and Cultural 

Purposes.

(a) In General—Notwithstanding section 14 of the

NFMA of 1976 (16 USC 472a), the Secretary may 

provide free of charge to Indian tribes any trees, 

portions of trees, or forest products from NFS land 

for traditional and cultural purposes.

(b) Prohibition—Trees, portions of trees, or forest 

products provided under subsection (a) may not be 

used for commercial purposes.

American Indian Religious Freedom Act

▪ Henceforth it shall be the policy of the United States 

to protect and preserve for American Indians their 

inherent right of freedom to believe, express, and 

exercise the traditional religions of the American 

Indian, Eskimo, Aleut, and Native Hawaiians, 

including but not limited to access to sites, use and 

possession of sacred objects, and the freedom to 

worship through ceremonials and traditional rites.

Religious Freedom Restoration Act

(a) IN GENERAL—Government shall not substantially 

burden a person’s exercise of religion even if the 

burden results from a rule of general applicability, 

except as provided in subsection (b).

(b) EXCEPTION—Government may burden a person’s 

exercise of religion only if it demonstrates that 

application of the burden to the person –

(1) furthers a compelling governmental interest; and

(2) is the least restrictive means of furthering that 

compelling governmental interest.

Forest Service Manual 1563.03

▪ Administer programs and activities in a manner that 

is sensitive to traditional American Indian and Alaska 

Native spiritual beliefs and practices and assist tribal 

members in securing ceremonial and medicinal plants...

and the use of specific geographic places, consistent with 

Federal policy under American Indian Religious Freedom 

Act and EO 13007 (Forest Service Manual 1563).

Kaibab and Coconino National Forest Memoranda of 

Understanding with Indian Tribes

▪ The Forest[s] shall “[a]llow access to shrines and 

resources...for traditional uses, including the collection 

of medicinal and ceremonial plants from traditional use 

areas. Such access is assured through the AIRFA and EO 

13007, provided the activity is in compliance with other 

laws and regulations (including FSM 1563 and the Code 

of Federal Regulations).

▪ [Tribal members] are encouraged but not required 

to obtain a free use permit and information on local 

availability and access....”

Policy

The following are policies on providing specific forest 

products to Native Americans for traditional and cultural 

purposes. Policy direction is provided for three categories of 

forest products—
48 Tribal Cultural and Heritage Cooperation Authority Technical Guide

1) Ceremonial fuelwood.

2) Timber products.

3) All other forest products. 

All forest products collected under these permits must be for 

traditional use only and may NOT be used for commercial 

purposes. An individual found to be in violation of this policy 

may receive a citation or the Forests may refuse subsequent 

requests for permits. For any request outside the scope of this 

policy, an individual or Tribe may outline the request to the 

forest supervisor or district ranger in writing, and each request 

will be considered on a case-by-case basis.

1. Ceremonial fuelwood Free ceremonial fuelwood, including 

ponderosa pine, pinyon pine, juniper and oak, will be 

provided at no charge to Tribes and Tribal members under 

the following conditions. Unless otherwise stated, all 

fuelwood permit requirements at the district level apply to 

any ceremonial fuelwood permit as follows—

▪ A permit is required for all ceremonial fuelwood. A 

ceremonial fuelwood permit costs no fee.

▪ A valid Native American Church membership card, 

Tribal identification card, or a letter from a Tribe or 

Tribal Chapter requesting free ceremonial fuelwood is 

required.

▪ A limit of one cord per permit, two permits per year, will 

be issued to any individual for free ceremonial fuelwood. 

Requests for ceremonial fuelwood exceeding this 

amount must be made in writing to the forest supervisor 

or district ranger and will be addressed on a case-by-case 

basis.

▪ Ceremonial fuelwood permits will be valid for up to one 

month within the regular fuelwood season.

▪ Ceremonial fuelwood is not restricted by length.

▪ Permits for collection of oak are for dead and down oak 

only unless otherwise stated specifically in the permit.

▪ Ceremonial fuelwood permits will not be issued outside 

of the personal use or commercial use fuelwood season.

▪ Unless otherwise stated here, all other local restrictions 

for fuelwood cutting apply to ceremonial fuelwood 

permits.

▪ Any area limits to personal use fuelwood cutting is also 

off limits for collection of fuelwood under a ceremonial 

permit.

▪ Individuals must be present to have a ceremonial 

collection permit issued. Requests on behalf of another 

person will be denied.

▪ If an individual indicates that requested fuelwood is 

not for ceremonial purposes, the request for ceremonial 

fuelwood will be denied.

2. Timber products Timber products other than fuelwood, 

including trees, posts, poles, saplings, and other special 

timber products, will be provided to Tribes and Tribal 

members at no charge under the following conditions—

▪ A permit is required for all timber products for traditional 

use. This permit costs no fee.

▪ Requests for traditional use timber products must be 

made in writing to the forest supervisor or district ranger. 

The request must state that the materials are needed for 

traditional use.

▪ Transportation of timber products must be provided by 

the individual or Tribe requesting the materials.

▪ Any area limits to personal use fuelwood cutting is 

also off limits for collection of timber products under a 

ceremonial permit.

3. Other forest products

▪ No permit is required for the collection of small amounts 

of forest products by Native Americans for medicinal, 

ceremonial, and traditional uses provided resource 

damage is not occurring. Forest products covered under 

this policy include small amounts of plants, wildflowers, 

mushrooms, moss, nuts, seeds, bark, berries, boughs, 

branches, cones, grasses, seeds, soil, and minerals.1

Tribal members are encouraged, but not required, 

to obtain a free-use permit and information on local 

availability and access of forest products by contacting 

a Forest Service office. The Forests will address specific 

resource issues resulting from the collection of forest 

products on a case-by-case basis in consultation with 

federally recognized Tribes.

▪ Tribal members are advised that some forest products, 

such as agave, require a permit from the State of 

Arizona. Tribal members are encouraged to contact the 

State of Arizona regarding State permit requirements.

▪ The U.S. Fish and Wildlife Service (FWS) is the 

responsible Agency for issuing permits for listed 

Threatened and Endangered (T&E) species federally listed 

under the Endangered Species Act (1973) that occur on the 

Forests. When Tribal members request collection permits 

for T&E plant species, the Forests will immediately refer 

them to the FWS. The FWS maintains lists for T&E 

species federally listed under the Endangered Species Act 

(2973) at www.fws.gov/endangered.

▪ Tribal members can contact the following Tribal 

Relations staff on the Forests for information and 

assistance regarding collection of forest products: 

Michael Lyndon, Kaibab National Forest Tribal Liaison, 

(928) 635–8272; Craig Johnson, Coconino National 

Forest Tribal Liaison, (928) 527–3475; and Mable 

Franklin, Kaibab National Forest Navajo Liaison, (928) 

679–2037.

1

 Soil and minerals are not considered forest products under Title 36 Code of Federal Regulations 223; reference Forest Service Handbook 2409.18, 87.05.
Tribal Cultural and Heritage Cooperation Authority Technical Guide 49

Appendix F—Templates for Confidentiality 

Agreements (Chapter 4)1

In general, and subject to specific limitations, the Cultural 

and Heritage Cooperation Act provides that—

The Secretary shall not disclose under section 552 of title 

5 (the “Freedom of Information Act”), information relating 

to:

(A) subject to subsection (b)(l)2, human remains or cultural 

items reburied on National Forest System land under 

section 3053 of this title; or

(B) subject to subsection (b)(2), resources, cultural items, 

uses, or activities that—

(i) have a traditional and cultural purpose; and

(ii) are provided to the Secretary by an Indian 

or Indian tribe under an express expectation 

of confidentiality in the context of forest and 

rangeland research activities carried out under the 

authority of the Forest Service.3

Template 1

Maintain as confidential records, maps, photographs, and 

other information about places significant to the (Tribe), 

which are prehistoric or historic resources. Such information 

that the (Tribe) provides is considered Tribal property on loan 

to the (forest unit). All (Tribe) information may be subject to 

exemption number 3 of the Freedom of Information Act, the 

Archaeological Resources Protection Act (ARPA), and the 

1992 Amendments to the National Historic Preservation Act

to protect confidentiality. This information will not be made 

available to the general public without the prior approval 

of the (Tribe). The Tribal Liaison and Forest Archaeologist 

will work to ensure the location of such places remain 

confidential, except on a need-to-know basis to forest officers 

charged with the protection of these places.

FOIA. Any documents or records of which the (NF) has 

possession and is custodian are subject to the FOIA and its 

exemptions, as applicable. As such, both parties are aware 

that FOIA requests for particular records and/or documents 

will be determined on a case-by-case basis, including those 

subject to FOIA Exemption at section (b)(3) which protects 

records specifically exempted from disclosure by statute 

other than 5 USC 552 (b). Records or documents that are 

protected from disclosure by other statutes, including the 

ARPA and the NHPA, will not be made available to the 

general public without the prior approval of the (Tribe). All 

FOIA requests received by the (NF) related to the (Tribe)’s 

interests will be coordinated with the (Tribe) to provide the 

proper response and/or to redact protected and potentially 

sensitive cultural information.

Template 2

Maintain as confidential records, maps, photographs, 

and other information about places significant to the 

(Tribe), including prehistoric and historic resources. The 

confidentiality of these places is assured through exemption 

3 of FOIA, the Archaeological Resources Protection Act, 

and the 1992 Amendments to the NHPA. This information 

shall not be made available to the general public without 

the prior approval of the (Tribal Chair or Leader) and/or the 

Cultural Resource Program Coordinator. The Tribal Liaison 

and Forest Archaeologist shall ensure the location of such 

places remain confidential, except on a need-to-know 

basis to forest officers charged with the protection of these 

places. The (NF) will work with the (Tribe) to establish an 

agreement on guidelines to ensure confidentiality of this 

information.

Template 3

The Forest Service will utilize and safeguard confidential 

records, maps, photographs, or other Tribe-authored 

information about properties and places on the national 

forests significant to the Tribe(s). The Forest Service will 

use cultural or historic information about sacred sites that 

has been disclosed during mutual exchange or collected 

by the Forests only for the protection and management of 

(Tribal) traditional places and practices. Such information, 

as is provided to the national forests by the Tribe(s), will 

be retained only with Tribal permission and will be held in 

confidence for the Tribes by the Forest Archaeologists and 

shall not be made available to the general public without 

the prior approval of the Tribes, subject to FOIA and its 

1 Template language is drawn from existing Memorandum of Agreements/Memorandum of Understandings across Regions.

2

 So in original. Probably should be “(b)(1).”

3

 Furthermore and to the extent allowed by Federal law, information on the location and nature of all cultural resources and traditional cultural information on 

land shall be held confidential as also provided by: section 304 of the National Historic Preservation Act (16 USC 470w-3); 2) 36 CFR 800.11(c), section 9 of 

the Archaeological Resources Protection Act (16 U.S. Code 470hh; 43 Code of Federal Regulations 7.3), and other applicable Federal laws.
50 Tribal Cultural and Heritage Cooperation Authority Technical Guide

exemptions. Information protected from disclosure by 

ARPA and the NHPA are exempted from disclosure under 

FOIA, Exemption (b)(3). The forest supervisors shall 

ensure that the locations of such properties and places are 

made known on a strictly need-to-know basis only to forest 

officers charged with the protection of these properties and 

places and to permitted researchers whose work has been 

approved by the Forest Archaeologists in furtherance of the 

protection of these properties and places.

Template 4

In order to better protect and preserve Tribal heritage values 

on (NF) land, it is mutually beneficial for both parties to 

share information necessary for the forest to manage such 

resources, provided that such information sharing and the 

use of that information in making management decisions 

are both conducted in strict confidentiality as provided for 

in Stipulation D.10 of this document. The reports generated 

as the products of any contracts with the (Tribe) become the 

property of the (NF). The information in these reports will be 

held in confidence for the (Tribe) by the Forest Archaeologist 

and shall not be made available to the general public without 

the prior approval of the (Tribe). All other sensitive and 

privileged information provided by the (Tribe) shall remain 

Tribal property, but may be used and retained by the forest 

as needed on an ongoing basis. The (Tribe) has the right to 

reclaim this property at its discretion, acknowledging that 

without such property, the forest may no longer be able to 

protect the places it refers to.

(NF) will utilize and safeguard confidential records, 

maps, photographs, or other Apache-authored information 

about properties and places on the forest significant 

to the (Tribe). The forest will use cultural or historic 

information about sacred sites that has been disclosed 

during mutual exchange or collected by the forest only 

for the protection and management of (Tribal) traditional 

places and practices. Such information, as is provided to 

the forest by the (Tribe), will be retained only with Tribal 

permission and will be held in confidence for the (Tribe) by 

the Forest Archaeologist and shall not be made available 

to the general public without the prior approval of the 

(Tribe), subject to theFOIA and its exemptions. Information 

protected from disclosure by the ARPA and the NHPA are 

exempted from disclosure under the FOIA, Exemption (b)

(3). The forest supervisor shall ensure that the locations of 

such properties and places are made known on a strictly 

need to know basis only to forest officers charged with the 

protection of these properties and places and to permitted 

researchers whose work has been approved by the Forest 

Archaeologist in furtherance of the protection of these 

properties and places.

D. THE FOREST SERVICE FURTHER AGREES to 

the following stipulations to implement consultation 

with the Tribes under NEPA, NHPA, AIRFA, Native 

American Graves Protection and Repatriation Act, E.O. 

13007, E.O. 13175, and Forest Service consultation 

policy with American Indian and Alaska Native Tribes 

(FSM 1563)—

10. Forest Service will utilize and safeguard 

confidential records, maps, photographs, or other 

(Tribe)-authored information about properties 

and places on the national forests significant to 

the Tribes. The Forest Service will use cultural or 

historic information about sacred sites that has been 

disclosed during mutual exchange or collected by 

the forests only for the protection and management 

of (Tribe) traditional places and practices. Such 

information, as is provided to the national forests 

by the Tribes, will be retained only with Tribal 

permission and will be held in confidence for the 

Tribes by the Forest Archaeologists and shall not 

be made available to the general public without 

the prior approval of the Tribes, subject to the 

FOIA and its exemptions. Information protected 

from disclosure by ARPA and NHPA is exempted 

from disclosure under the Freedom of Information 

Act, Exemption (b)(3). The forest supervisors 

shall ensure that the locations of such properties 

and places are made known on a strictly needto-know basis only to Forest officers charged 

with the protection of these properties and places 

and to permitted researchers whose work has 

been approved by the Forest Archaeologists in 

furtherance of the protection of these properties 

and places.

Template 5

Issues to be Addressed in Consultation: The parties intend 

that all issues relevant to the protection and enhancement 

of Treaty and trust resources shall be addressed in 

consultation, including but not limited to the following: 

coordination and consultation between the parties regarding 

impacts on habitats affecting fish, plants, and wildlife 

populations; the application and use of watershed analysis 

and ecosystem management; and any scientific concepts 

that may succeed these approaches; appropriateness or 

effectiveness of existing plans; policies and guidelines 

for resource protection; cultural components of resource 

use and protection; and protection of cultural resources, 

including maintaining confidentiality regarding such 

resources.
Tribal Cultural and Heritage Cooperation Authority Technical Guide 51

Template 6

IT IS MUTUALLY UNDERSTOOD AND AGREED BY 

AND BETWEEN THE PARTIES THAT—

1. FOIA. Any information furnished to the Forest Service 

under this instrument is subject to FOIA (5 USC 552). 

Exemptions exist, however, for information that the 

parties deem as sensitive. Under NHPA 16 USC 470hh 

Confidentiality of information concerning nature 

and location of archaeological resources part (a) 

Disclosure of Information in part states: “Information 

concerning the nature and location of any archaeological 

resource for which the excavation or removal requires 

a permit or other permission under provision of 

Federal Law may not be made available to the public.” 

Furthermore, 16 USC 470w-3(a) provides for the 

confidentiality of the location of sensitive historic 

resources, which includes, among others, the protection 

of the use of traditional religious sites by practitioners.

Template 7

* Note: The following sample of a Research Joint 

Venture Agreement takes the strategy of leaving project 

data in the possession of the Tribe versus the Agency.

Background and problem statement: The (Tribe) and 

the Forest Service have experience working together 

to understand the relationship between residents of the 

(Reservation, Rancheria, Village) and the (landscape 

descriptor: mountain range, valley, watershed, etc.). 

Past experience has focused on how these relationships 

influence (attitudes, practices, natural resource strategies, 

policies, etc.) in maintaining ecosystem health through 

vegetative management and fire applications. Currently, 

it is necessary to further understand how Reservation 

or Rancheria or Village residents and Tribal resource 

managers perceive forecasted climate change trends 

that may interact with long-term dependence on natural 

resources (e.g., water, wildlife, vegetation, aesthetics, 

traditional landscapes) in order to build adaptive capacity 

into a long-term forest plan. This agreement represents a 

collaborative effort between the (Tribe) and the (Research 

Station) to facilitate long-term forest and fire planning that 

includes environmental change uncertainties.

Establishment of mutual benefits and interests: 

The Forest Service is interested in consultations with 

American Indian entities to assist in developing knowledge 

about relationships people have with natural resources, 

understanding how natural resource professionals feel that 

climate change will affect the resources they manage, and 

facilitate interaction between climate change scientists 

and both natural resource managers and the public in 

order to build adaptive capacity to minimize impacts on 

the flow of benefits from collectively held lands to future 

generations of American citizens. The (Tribe) is committed 

to developing long-term forest management plans that are 

responsive to changing environmental and social factors, 

balance environmental well-being with cultural values 

and human well-being, including revenue production and 

emotional attachments to landscapes, and apply the latest 

scientific knowledge. Both the Forest Service and the 

(Tribe) are committed to conducting research that increases 

potential for protecting the environmental well-being and 

human well-being for future populations of people living 

on the (Reservation, Rancheria, etc.).

Work Plan:

The work plan should fully describe all work, tasks, 

studies, reports, inspections, consultations, and cooperation 

the Forest Service will perform.

A. Specific (Tribal) tasks:

1. Assign a Tribal liaison (name) with primary 

responsibility to interact with the Forest 

Service and other cooperators (list partners) 

to cooperatively develop a study plan, collect 

information, and assist in summarizing and 

presenting findings.

2. Develop a study plan, cooperatively with the 

Forest Service and Forest Service cooperators (list 

partners) by (date) for a case study that focuses on 

the following—

(i) Describe past, current, and desired future 

attributes of one significant landscape 

within the (Reservation, Rancheria, Village), 

pertaining to water security and fire regime 

attributes.

(ii) Include perceptions from relevant Reservation 

or Rancheria or Village residents and 

Reservation natural resource managers.

3. Conduct the study following agreed upon study 

plan methods.

4. Provide a PowerPoint presentation with 

illustrations that explains the chosen landscape 

parameters (describe the physical area of focus 

on the Reservation or Rancheria or Village), 

summarizes methods used, explains the purpose of 

the case study, describes the resident and natural 

resource manager characteristics, and summarizes 

findings and implications for forest planning.

B. Specific (Forest Service) Tasks:

1. Cooperate to develop a mutually acceptable study 

plan by (date).

2. Provide technical support for data collection 

methodology and analysis through the partner(s), 

cooperator and recipient of Forest Service funds 
52 Tribal Cultural and Heritage Cooperation Authority Technical Guide

targeted in support of this data collection and 

analysis project with (Tribe).

3. Facilitate review and input by qualified (Research 

Station) scientists engaged in climate change 

research.

4. Co-write a final report with (Tribe) that describes 

the purpose of this project, outcomes, and likely 

application potential for other landscape segments 

within the (Reservation, Rancheria, Village)’s 

long-term forest planning process.

It is mutually agreed that ...

A. Due to inclusion of potentially sensitive information 

regarding personal and community relationships with 

specific places within the (Reservation, Rancheria, 

Village), the Forest Service will serve in a consultative 

role, guiding the (Tribe) in data analysis and reporting, 

though all data records will remain with (Tribe) for 

safekeeping and cooperative additional analysis as 

opportunities arise.

Templates for Other Instruments 

Regarding Confidentiality

* Note: Several approved nondisclosure agreements are 

available for Agency use that address confidentiality 

from the perspective of trade secrets or commercial or 

financial information that is privileged or confidential. 

This approved language, however, merits further 

consideration for its applicability to the protection of 

Tribal information—

Template 8—Cooperative Research and 

Development Agreement (excerpted)4

Article 3. Confidentiality

3.1 The Forest Service will process all requests for the 

release of information in accordance with the FOIA.

3.2 Confidential Information, which is owned by one party 

to this Agreement and disclosed to the other, must be 

labeled “CONFIDENTIAL” by the submitter and must 

not be disclosed by the recipient without permission of 

the owner, or for the period as defined per article 3.

3.3 Confidential information will only be shared with 

personnel who have a need to know.

3.4 To the extent either party orally submits its Confidential 

Information to the other party, the submitting party 

will prepare a document marked “CONFIDENTIAL” 

embodying or identifying in reasonable detail such 

orally submitted Confidential Information and provide 

the document to the other party within thirty (30) days 

of disclosure.

3.5 Neither party shall be bound by confidentiality if the 

Confidential Information received from the other party:

a. Already is available to the public or known to the 

recipient;

b. Becomes available to the public through no fault of 

the recipient; or

c. Is non-confidentially received from another party 

legally entitled to it.

3.6 Confidential Information, provided by and which 

would otherwise be controlled in accordance with 

5 USC 552(b)(4), and which is used or integral in 

the development of an invention or other intellectual 

property conceived or first reduced to practice under 

this Agreement, and which is patentable or otherwise 

protectable under Title 35 of the United States Code (7 

USC 2321, et seq.) or under the patent laws of a foreign 

country, must only remain confidential for a period 

of years, months, following the development of said 

invention or other intellectual property.

3.7 All information developed under this Agreement falling 

within the scope of the Agreement must be considered 

by both the cooperator and the Forest Service as 

confidential for a period of years, months, following the 

development of the information.

3.8 Public access to grant or agreement records must 

not be limited, except when such records must be 

kept confidential and would have been excepted 

from disclosure pursuant to Freedom of Information 

regulations (5 USC 552).

Template 9—Nondisclosure Agreement 

(excerpted)5

For and in consideration of the mutual understandings by 

(the cooperator) and the Forest Service, it is hereby agreed:

1. The Proprietary Information may include, for example, 

data, know-how, formulas, processes, designs, sketches, 

photographs, plans, drawings, specifications, samples, 

reports, customer lists, price lists, studies, findings, 

inventions or ideas, but is not limited to those items.

2. The Discloser, which can be either (the cooperator) or 

the Forest Service, intends to maintain the confidential 

status of its Proprietary Information.

3. The Discloser shall designate or mark the proprietary 

nature of its Proprietary Information so the Recipient, 

which can be either (the cooperator) or the Forest Service, 

is aware that its receipt is governed by the terms of this 

Agreement.

4. The (cooperator’s or the Forest Service’s) proprietary 

information, and uses therein, includes:

4

 Cooperative Research and Development Agreement (OMB 0596-0217 FS-1500-13).

5 Nondisclosure Agreement (OMB 0596-0217 FS-1500-13B).
Tribal Cultural and Heritage Cooperation Authority Technical Guide 53

5. The parties’ representatives for disclosing and receiving 

Proprietary Information are designated below. Said 

representatives shall make all arrangements and 

be informed of all communications relating to this 

Agreement. Any changes in representative by one party 

shall be made upon written notice to the other party.

6. Individuals listed below are authorized to act in their 

respective areas for matters related to this agreement.

7. While the amount of Proprietary Information to be 

disclosed is completely within the discretion of the 

Discloser, all disclosures hereunder shall be completed 

by (date).

8. The Recipient shall exercise reasonable care to 

prevent disclosure of Discloser’s Proprietary 

Information to any third party, except as may be 

authorized in writing by Discloser, and internal 

dissemination of Discloser’s Proprietary Information 

by the Recipient shall be limited to those employees 

whose duties justify their need to know such 

information and then only on the basis of a clear 

understanding by these employees of their obligation 

to maintain the confidential status of such information 

and to restrict the use of such information solely to the 

use granted to the Recipient under this Agreement.

9. Recipient shall not use the Proprietary Information 

disclosed by Discloser except for any purpose as 

stated in paragraph 4, above.

10. Nothing hereinabove contained shall deprive 

Recipient of the right to use or disclose any 

information:

a. which is, at the time of disclosure, generally 

known to the trade or the public;

b. which becomes at a later date generally known 

to the trade or the public through no fault of 

Recipient and then only after said later date;

c. which is possessed by Recipient, as evidenced 

by Recipient’s written or other tangible evidence, 

before receipt thereof from Discloser;

d. which is disclosed to Recipient in good faith by a 

third party who has an independent right to such 

information; or

e. after a period ending (date).

11. Nothing hereinabove contained may be construed 

as granting or implying any right under any Letters 

Patent or to use any invention covered thereby.

Template 10—Material Transfer 

Agreement (excerpted)6

A Material Transfer Agreement (MTA) authorizes the 

formal transfer of material from one party to another. 

Discussions are often initiated by non-Forest Service 

entities for the purposes of gaining access to Forest 

Service-developed materials. The MTA limits who may 

analyze/test the material and requires the recipient to 

share with the provider any data derived from the testing. 

The MTA also limits publication and licensing, offers no 

material merchantability or warranty, and restricts the 

transfer of material deemed confidential. The provider 

instructs the recipient as to the return or disposal of the 

material.

Material is released to Recipient under the following 

conditions:

13. Terms of Confidentiality:

a. shall not disclose Material marked “Confidential” 

or “Proprietary” to any third party nor use such 

Confidential Information for any purpose other than 

that given above without written permission from 

the Forest Service.

b. shall use the same degree of care to protect 

Confidential Information received under this 

Agreement as it uses to protect its own information 

of a similar nature, but in any event not less than 

reasonable care under the circumstances.

c. The Confidential Information must be excluded 

from confidentiality if can demonstrate that (a) 

it had possession of the information prior to 

disclosure; or (b) the information generally is 

available to the public at the time of disclosure, 

or becomes generally available, after disclosure, 

through no fault of the Forest Service; or (c) 

receive(s) the information from a third party having 

the right to the information and who does not 

impose confidentiality.

d. It is not a breach of this Agreement if is/are 

required to disclose the Confidential Information by 

a valid order of a court or other government body, 

or as otherwise required by law, or as necessary 

to establish the rights of either party under this 

Agreement PROVIDED THAT the party(s) 

shall provide prompt prior notice thereof to the 

Forest Service, to enable the Forest Service to 

seek a protective order or otherwise prevent such 

disclosure, and PROVIDED FURTHER THAT the 

Confidential Information otherwise must continue 

to be confidential.

6

 Material Transfer Agreement (OMB 0596-0217 FS-1500-13A).
Tribal Cultural and Heritage Cooperation Authority Technical Guide