I 117th CONGRESS 2d Session H. R. 6716 IN THE HOUSE OF REPRESENTATIVES February 11, 2022 Mr. LaMalfa (for himself and Mr. Garamendi ) introduced the following bill; which was referred to the Committee on Transportation and Infrastructure A BILL To amend the Water Resources Development Act of 2000 to protect Native American burial sites, village sites, and cultural resources discovered at civil works projects of the Corps of Engineers, and for other purposes.

1. Short title This Act may be cited as the Native American Burial Sites and Cultural Resources Protection Act . 2. Reburial and conveyance authority (a) Definitions Section 208(a) of the Water Resources Development Act of 2000 ( 33 U.S.C. 2338(a) ) is amended to read as follows: (a) Definitions In this section: (1) Affected Indian Tribe The term affected Indian Tribe means any Indian Tribe that attaches religious or other significance to any burial site, village site, or cultural resources identified or discovered at a covered civil works project. (2) Burial site The term burial site means any natural or prepared physical location, whether originally below, on, or above the surface of the earth, where Native American cultural resources are present as a result of a death rite or ceremony of a culture. (3) Covered civil works project The term covered civil works project means a civil works project— (A) that is being carried out, or operated and maintained, using Federal funds; and (B) that is owned, authorized, permitted, carried out, or operated and maintained by the Department of the Army, including a project carried out by a non-Federal interest under section 204 of the Water Resources Development Act of 1986 ( 33 U.S.C. 2232 ) or section 1043 of the Water Resources Reform and Development Act of 2014 ( 33 U.S.C. 2201 note). (4) Cultural resources The term cultural resources means— (A) human remains; or (B) funerary objects or other ceremonial objects. (5) Funerary objects The term funerary objects means items that are associated with the death rite or ceremony of a culture. (6) Human remains The term human remains means the physical remains of a human body, including such remains that have been cremated and that may be in any state of decomposition or skeletal completeness (including ashes or small bone fragments). (7) Indian Tribe The term Indian Tribe has the meaning given that term in section 4(e) of the Indian Self-Determination and Education Assistance Act ( 25 U.S.C. 5304(e) ). (8) Rightfully claimed The term rightfully claimed means claimed by— (A) with respect to cultural resources identified or discovered on Federal or Tribal lands at the site of a covered civil works project— (i) the person or entity with ownership or control of the cultural resources under section 3 of the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3002 ); or (ii) with respect to cultural resources not subject to such Act, the appropriate person or entity determined in accordance with the priority order established by such section; and (B) with respect to cultural resources identified or discovered on other lands at the site of a covered civil works project— (i) in the case of Native American human remains and funerary objects associated with such remains, the lineal descendants of the Native American, as determined in accordance with the laws of the State in which the site is located; or (ii) in any case in which such lineal descendants cannot be ascertained, and in the case of other funerary objects or other ceremonial objects— (I) the Indian Tribe with the highest priority under the priority order established by the laws of the State in which the site is located; or (II) if the State in which the site is located has not so established a priority order— (aa) the Indian Tribe that has the closest cultural affiliation with the cultural resources; or (bb) if the cultural affiliation of the cultural resources cannot be reasonably ascertained— (AA) the Indian Tribe that is recognized as aboriginally occupying the area in which the cultural resources were identified or discovered; or (BB) if it can be shown by a preponderance of the evidence that a different Indian Tribe has a stronger cultural relationship with the cultural resources than the Indian Tribe specified in subitem (AA), the Indian Tribe that has the strongest demonstrated relationship with such cultural resources. (9) Village site The term village site means any natural or prepared physical location, whether below, on, or above the surface of the earth, where a Native American village has been present. . (b) Recovery and reburial requirements Section 208(b) of the Water Resources Development Act of 2000 ( 33 U.S.C. 2338(b) ) is amended to read as follows: (b) Reburial (1) Reburial areas In consultation with and with the consent of each affected Indian Tribe, the Secretary shall identify, and, as applicable, cooperate with appropriate property owners to set aside, areas that may be used for the reburial of Native American human remains and funerary objects that— (A) have been identified or discovered at the site of a covered civil works project; (B) have been rightfully claimed by any affected Indian Tribe; and (C) can be reburied in such areas in a manner secure from future disturbances, with the consent of the property owner or owners, as applicable. (2) Recovery and reburial standards (A) Timing of recovery (i) Requirements The Secretary shall work in good faith with each affected Indian Tribe, and each owner of property affected by the recovery process, to ensure that— (I) the recovery from the site of a covered civil works project of Native American cultural resources under this section is completed, pursuant to a written plan or protocol, not later than 45 days after the initiation of recovery from the site; and (II) with respect to a burial site, village site, or cultural resources identified at the site of a covered civil works project before construction of the covered civil works project commences, such recovery is completed before such construction commences on the portion of the covered civil works project affected by the recovery process. (ii) Alternative timetable Notwithstanding the deadlines established by clause (i), the Secretary, each relevant non-Federal interest for the covered civil works project, each affected Indian Tribe, and each owner of property affected by the recovery process may negotiate and agree to an alternative timetable for recovery other than that required by such clause, based on the circumstances of the applicable covered civil works project. (B) Guidance Not later than 180 days after the date of enactment of the Native American Burial Sites and Cultural Resources Protection Act , the Secretary shall develop and issue written guidance for recovery and reburial under this section that meets or exceeds the recovery and reburial standards in policy statements and guidance issued by the Advisory Council on Historic Preservation. (C) Eminent domain prohibition The Secretary may not exercise the power of eminent domain to acquire any property to be used for reburial under this section. (3) Recovery and reburial (A) Recovery and reburial by Secretary In consultation with and with the consent of each affected Indian Tribe, the Secretary shall at Federal expense, with appropriate dignity and in accordance with the guidance developed under paragraph (2)— (i) recover any cultural resources identified or discovered at the site of a covered civil works project and rightfully claimed by any affected Indian Tribe; (ii) rebury any human remains and funerary objects so recovered at the applicable areas identified and set aside under paragraph (1); and (iii) repatriate any other cultural resources so recovered to the affected Indian Tribe that has rightfully claimed such cultural resources. (B) Tribal delegation (i) In general Upon the request of an affected Indian Tribe, the Secretary shall delegate to the Indian Tribe recovery and reburial responsibilities under this section of cultural resources that have been rightfully claimed by the affected Indian Tribe, and shall reimburse the affected Indian Tribe for costs directly related to such recovery and reburial. (ii) Memorandum of agreement In carrying out clause (i)— (I) with respect to a burial site, village site, or cultural resources identified at a covered civil works project before construction of the project commences, the Secretary shall, upon request by the affected Indian Tribe, enter into a written memorandum of agreement with the affected Indian Tribe before such construction commences; and (II) with respect to a burial site, village site, or cultural resources discovered at a covered civil works project after construction of the project commences, the Secretary shall, upon request by the affected Indian Tribe, enter into a written memorandum of agreement with the affected Indian Tribe not later than 45 days after such discovery. (iii) Limitation Reimbursement under clause (i) shall not exceed 1 percent of the total cost of construction of the applicable covered civil works project. (4) Tribal monitors (A) In general During the construction of any covered civil works project, the Secretary may hire a Tribal monitor or monitors, and shall allow any affected Indian Tribe to hire a Tribal monitor or monitors, at Federal expense, for each area of construction, including for each burial site and village site with respect to which Native American cultural resources are being recovered for reburial. (B) Qualifications The Secretary or affected Indian Tribe, as applicable, shall ensure that preference in hiring Tribal monitors under this paragraph is provided to qualified Native Americans, including individuals who— (i) have a professional relationship with the affected Indian Tribe; or (ii) possess knowledge of, and expertise in, the customs of the affected Indian Tribe. (C) Limitation The Federal expense of Tribal monitors hired under this paragraph shall not exceed 1 percent of the total cost of construction of the applicable covered civil works project. (5) Identification and inventory The Secretary shall accept identifications made by an affected Indian Tribe of Native American burial sites and village sites at the site of a covered civil works project, and include such identifications in any inventory document for such project. (6) Timing of payments The Secretary shall enter into a contract or other agreement to make a payment to an affected Indian Tribe for reimbursement of costs under paragraph (3)(B) or expenses under paragraph (4), which payment shall be made not later than 90 days after the affected Indian Tribe submits an invoice for such costs or expenses to the Secretary. . (c) Conveyance authority Section 208(c)(1) of the Water Resources Development Act of 2000 ( 33 U.S.C. 2338(c)(1) ) is amended by striking the Secretary may convey to an Indian tribe for use as a cemetery an area at a civil works project that is identified and set aside by the Secretary under subsection (b)(1) and inserting the Secretary may convey to an affected Indian Tribe for use as a cemetery or reburial area any area that is located on land owned by the Department of the Army and is identified and set aside under subsection (b)(1) . (d) Confidentiality; avoidance of duplication Section 208 of the Water Resources Development Act of 2000 ( 33 U.S.C. 2338 ) is amended by adding at the end the following: (d) Confidentiality of information provided (1) In general The Secretary shall develop and issue written guidance regarding the confidentiality of information provided to the Department of the Army by Indian Tribes in connection with any covered civil works project. (2) Applicability of FOIA Information provided to the Department of the Army by an Indian Tribe under this section shall be exempt from public disclosure under section 552(b)(3) of title 5, United States Code, to protect Native American burial sites, village sites, and cultural resources, and their locations, from unauthorized excavation, desecration, or vandalism. (e) Avoidance of duplication In carrying out this section, the Secretary shall avoid, to the maximum extent practicable, duplication of efforts relating to compliance with this section and any other applicable provision of law. . (e) Applicability Any requirement of subsection (b) of section 208 of the Water Resources Development Act of 2000 resulting from the amendments made by this section shall not affect any contract relating to a covered civil works project (as defined in such section 208) entered into by the Secretary of the Army before the date of enactment of this Act.