MINUTES

NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION REVIEW COMMITTEE

FORTY-SEVENTH MEETING

NOVEMBER 28-29, 2012

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TABLE OF CONTENTS The 47th Meeting of the Review Committee 4 Comments by Designated Federal Officer 7 Report: National NAGPRA Program Report on the Implementation of NAGPRA in FY 2012 7 Notices 7 Training 8 Civil Penalties 8 Digitization and Archiving Project 9 Web News and Data Management 9 Grants 9 Regulations 9 Action Item: CUI Database Recommendation 9 Review Committee Questions and Discussion 10 Review Committee Motion 10 Presentations: Research Reports 10 Presentation: The Columbia Plateau Inter-Tribal Repatriation Group 11 Presentation 11 Review Committee Questions and Discussion 11 Action Item: CUI Disposition Request, University of Washington Anthropology Department, WA 12 Presentation 12 Review Committee Motion 13 Comments by Principal Deputy Assistant Secretary for Fish and Wildlife and Parks – Rachel Jacobson 13 Presentation: NAGPRA Update – Bureau of Indian Affairs 13 Presentation 13 Review Committee Questions and Discussion 14 Action Item: CUI Disposition Request, Central Washington University 14 Presentation 14 Review Committee Motion 14 Action Item: CUI Disposition Request, University of New Hampshire 15 Presentation 15 Review Committee Questions and Discussion 15 Review Committee Motion 15 Presentation: Hickory Ground 16 Presentation 16 Review Committee Questions and Discussion 16 Presentation: NPS Publication – American Indians in the Civil War 17 Public Comment – November 28, 2012 17 State University of New York – Oswego 17 Review Committee Questions and Discussion 17 Ms. Christine Landrum 17 Ms. Shannon Keller O’Loughlin 18 Ms. Bambi Kraus 18 Mr. Brian Howard 19 Ms. Pat Parker 19

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Report and Discussion: Burial Ground Subcommittee Report and Discussion of Recommendations 19 Review Committee Motion 19 Action Item: Discussion and Review of the Review Committee’s Dispute Procedures and Findings Procedures 20 Review Committee Motion 20 Discussion: Location of 49th Meeting, Fall 2013 20 Presentation: Progress Report – Peabody Museum of Archaeology and Ethnology, Harvard University 21 Review Committee Questions and Discussion 22 Action Item: Finalization of the Review Committee 2012 Report to Congress 22 Recommendation 1: Amendments to 43 C.F.R. 10.11. 22 Review Committee Motion 22 Recommendation 2: Increasing Funding for National NAGPRA Program. 22 Review Committee Motion 22 Review Committee Motion 23 Recommendation 3: Allotment of Reburial Lands. 23 Review Committee Motion 23 Recommendation 4: Processing of Affiliated Remains. 23 Review Committee Motion 23 Recommendation 5: Study of Federal Agency Reburials. 23 Review Committee Motion 23 Recommendation 6: International Repatriation. 23 Review Committee Motion 24 Recommendation 7: Changing the Definition of Native American. 24 Review Committee Motion 24 Carryover Recommendations 24 Recommendation 8 24 Review Committee Motion 24 Review Committee Motion 25 Process to Finalize the 2012 Report to Congress 25 Comments – Mr. Alexander Barker 25 Public Comment – November 29, 2013 25 Ms. Semana Thompson 25 Review Committee Questions and Discussion 26 Mr. Shane Anton/Ms. Angela Garcia-Lewis 26 Review Committee Questions and Discussion 27 Ms. Shannon Keller O’Loughlin 27 Review Committee Questions and Discussion 27 Mr. Clayton Dumont 27 Ms. Christine Abrams 28 Closing Comments 28 Traditional Closing 28 Meeting Adjournment 29

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Background

The Native American Graves Protection and Repatriation Review Committee was established under the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3001 et seq., which was signed into law by President George Bush on November 16, 1990.

Pursuant to 25 U.S.C. 3006 (c) and (h), the Review Committee is responsible for – 1. Designating one of the members of the committee as chairman; 2. Monitoring the inventory and identification process conducted under sections 5 and 6 to ensure a fair, objective consideration and assessment of all available relevant information and evidence; 3. Upon the request of any affected party, reviewing and making findings related to- A. The identity or cultural affiliation of cultural items, or B. The return of such items; 4. Facilitating the resolution of any disputes among Indian tribes, Native Hawaiian organizations, or lineal descendants and Federal agencies or museums relating to the return of such items, including convening the parties to the dispute if deemed desirable; 5. Compiling an inventory of culturally unidentifiable human remains that are in the possession or control of each Federal agency and museum and recommending specific actions for developing a process for disposition of such remains; 6. Consulting with Indian tribes and Native Hawaiian organizations and museums on matters within the scope of the work of the committee affecting such tribes or organizations; 7. Consulting with the Secretary of the Interior in the development of regulations to carry out this Act; 8. Performing such other related functions as the Secretary may assign to the committee; 9. Making recommendations, if appropriate, regarding future care of cultural items which are to be repatriated; and 10. Submitting an annual report to the Congress on the progress made, and any barriers encountered, in implementing this section during the previous year.

The Review Committee is organized and administered according to the Federal Advisory Committee Act (FACA), 5 U.S.C. Appendix (2006).

Six Review Committee members are appointed by the Secretary of the Interior from nominations by Indian tribes, Native Hawaiian organizations, traditional Native American religious leaders, national museum organizations, and scientific organizations. At least two of the members must be traditional Indian religious leaders. One Review Committee member is appointed by the Secretary from a list of persons developed and unanimously approved by the other members.

The Review Committee reports to the Secretary of the Interior. Under the Review Committee’s charter, the Manager, National NAGPRA Program, National Park Service (NPS) or a designee serves as the Designated Federal Officer (DFO) to the Review Committee. The DFO oversees the activities of the Review Committee and coordinates NPS administrative and staff support to the Review Committee on behalf of the Secretary of the Interior.

Additional information about the Review Committee – including the Review Committee’s charter, membership, meeting protocol, and dispute procedures – is available at the National NAGPRA Website, http://www.nps.gov/nagpra (click on “Review Committee”).

Notice of this Review Committee meeting was published in the Federal Register on February 10, 2012 (77 FR- 7180-7181).

The 47th Meeting of the Review Committee

The 47th meeting of the Native American Graves Protection and Repatriation Review Committee was called to order by Ms. Rosita Worl, Chair, at 8:34 a.m., Wednesday, November 28, 2012. Ms. Hutt confirmed the attendance of the Review Committee members. Mr. Armand Minthorn, Confederated Tribes of the Umatilla Reservation, Oregon, offered a prayer to open the meeting on Wednesday, November 28, 2012. Ms. Hutt introduced the National

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NAGPRA Program staff present at the meeting. Mr. John offered an opening prayer on Thursday, November 29, 2012. Ms. Worl thanked the National Museum of the American Indian for hosting the meeting.

Review Committee members present – Ms. Rosita Worl – Chair Ms. Sonya Atalay Mr. Alexander (Alec) Barker Ms. LindaLee (Cissy) Kuuleilani Farm Mr. Eric Hemenway Mr. Adrian John Mr. Mervin Wright, Jr.

Designated Federal Officer present – Ms. Sherry Hutt, Program Manager, National NAGPRA Program

National Park Service/Department of the Interior staff in attendance – Ms. Rachel Jacobson, Principal Deputy Assistant Secretary of the Interior for Fish and Wildlife and Parks Ms. Melanie O’Brien, Notice Coordinator, National NAGPRA Program, National Park Service Ms. Mariah Soriano, Database and Web Coordinator, National NAGPRA Program, National Park Service Mr. David Tarler, Training and Civil Penalties Coordinator, and Regulations, National NAGPRA Program, National Park Service Ms. Robin Coates, Secretary, National NAGPRA Program, National Park Service Ms. Shannon Keller O’Loughlin, Contractor, Civil Penalties Analyst, National NAGPRA Program, National Park Service Ms. Lesa Koscielski, Contractor, National NAGPRA Program, National Park Service Ms. Kirsten Harness, Intern, National NAGPRA Program, National Park Service Ms. Maya Solis, Intern, National NAGPRA Program, National Park Service Ms. Carla Mattix, Division of Parks and Wildlife, Office of the Solicitor, Department of the Interior Mr. Stephen Simpson, Division of Indian Affairs, Office of the Solicitor, Department of the Interior

Persons in attendance during part or all of the meeting (names and affiliations as provided by attendees) – Mr. Neil Abelsma, U.S. Dept. of Interior, Bureau of Indian Affairs, Reston, VA Ms. Christine Abrams, Tonawanda Seneca Nation, Haudenosaunee Standing Committee, Besom, NY Ms. Anne Amati, University of Denver, Dept. of Anthropology, Denver, CO Rep. Jan Angel, Washington State House of Representatives, Olympia, WA Mr. Shane Anton, Salt River Pima-Maricopa Indian Community, Scottsdale, AZ Ms. Risa Arbolino, Silver Spring, MD Ms. Christy Baker, U.S. Dept. of Interior, National Park Service, Intermountain Region, Indian Affairs and American Culture, Moose, WY Mr. Des Barnes, Cape Tribulation, Australia Ms. Vicki Barnes, Cape Tribulation, Australia Mr. Buster Bear, Jr., Hickory Ground, Tulsa, OK Ms. Jan Bernstein, Bernstein & Associates, Denver, CO Mr. William Billeck, Smithsonian Institution, National Museum of the American Indian, Washington, DC Ms. Kathleen Blake, State University of New York – Oswego, Oswego, NY Mr. Stanley Bond, U.S. Dept. of the Interior, National Park Service, Washington, DC Ms. Lori Breslauer, Field Museum of Natural History, Chicago, IL Ms. Susan Bruning, Society for American Archeology, Southern Methodist University, Southlake, TX Mr. Rex Buck, Jr., Wanapum Band of Priest Rapids, Priest Rapids, WA Ms. Patricia Capone, Peabody Museum of Archaeology and Ethnology, Harvard University, Cambridge, MA Ms. Mary Carroll, National Park Service, Park NAGPRA Program, Denver, CO Mr. Terry Cole, The Muscogee (Creek) Nation, Okmulgee, OK Ms. Jacqueline M. Cook, Confederated Tribes of the Colville Reservation, Washington, Nespelem, WA Mr. Sydney Corcuera, Mooreland Hills, OH Ms. Cindy Darcy, Nez Perce Tribe, [Lapwai, ID] Ms. Chumona Deere, The Muscogee (Creek) Nation, Okmulgee, OK Mr. Sam Bonnie Deere, Hickory Ground, Henrietta, OK ______NAGPRA REVIEW COMMITTEE MEETING MINUTES November 28-29, 2012, page 5

Ms. Sandra Dong, Peabody Museum of Archaeology and Ethnology, Harvard University, Cambridge, MA Mr. Chris Dudar, Smithsonian Institution, National Museum of Natural History, Washington, DC Mr. Clayton Dumont, San Francisco State University, San Francisco, CA Ms. Marci DuPraw, Takoma Park, MD Ms. Deborah Earle, Smithsonian Institution, National Museum of Natural History, Washington, DC Ms. Carrie Feldman, Smithsonian Institution, National Museum of the American Indian, Washington, DC Ms. Jackie Ferry, Samish Indian Nation, Anacortes, WA Mr. David Gadsby, U.S. Dept. of the Interior, National Park Service, Washington, DC Ms. Angela Garcia-Lewis, Salt River Pima-Maricopa Indian Community, Scottsdale, AZ Ms. Sheila Goff, History Colorado, Denver, CO Ms. D. Rae Gould, University of Massachusetts, Amherst, MA Ms. Erin Gredell, Yale Peabody Museum, New Haven, CT Mr. Waylon Grey, Hickory Ground, Henrietta, OK Ms. Lourdes Henbry-DeLeon, Central Washington University, Ellensburg, WA Mr. Matt Hill, Confederated Tribes of the Umatilla Indian Reservation, Washington, DC Mr. Lucas Hoedl, National Park Service, Denver, CO Mr. Eric Hollinger, Smithsonian Institution, National Museum of Natural History, Washington, DC Mr. Brian Howard, National Congress of American Indians, Washington, DC Mr. Jeff Irwin, US Dept. of Defense, Navy, Washington Naval Yard, Washington, DC Mr. Jordan Jacobs, Phoebe A. Hearst Museum of Anthropology, Berkeley, CA Mr. Mark Keenan, Government Accountability Office, Washington, DC Mr. Marv Keller, Bureau of Indian Affairs, Reston, VA Mr. Charles Kelly, Hickory Ground, Henrietta, OK Mr. Ben Kershaw, American Alliance of Museums Mr. Tom King, Silver Spring, MD Ms. D. Bambi Kraus, National Association of Tribal Historic Preservation Officers, Washington, DC Mr. Lars Krutak, Smithsonian Institution, National Museum of Natural History, Washington, DC Ms. Christine Landrum, U.S. Dept. of Interior, National Park Service, Intermountain Region, Denver, CO Ms. Dorothy Lippert, Smithsonian Institution, National Museum of Natural History, Washington, DC Ms. Aileen Lowrie, U.S. Dept. of Interior, National Park Service, Intermountain Region, Indian Affairs and American Culture, Denver, CO Ms. Alexa Lucera, State University of New York – Oswego, Oswego, NY Ms. Lisa MacFarlane, Univ. of New Hampshire, Durham, NH Ms. Jess Milhausen, University of Washington, Burke Museum, Seattle, WA Mr. Armand Minthorn, Confederated Tribes of the Umatilla Reservation, Pendleton, OR Ms. Donna Moody, Abenaki Nation, White River Junction, VT Mr. John Moody, Abenaki Nation, White River Junction, VT Mr. Damian Morden-Snipper, Friends Committee on National Legislation, Washington, DC Ms. Michele Morgan, Peabody Museum of Archaeology and Ethnology, Harvard University, Cambridge, MA Ms. Willow Morkert, Self Ms. Nell Murphy, American Museum of Natural History, New York, NY Mr. Alden Naranjo, Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado, Ignacio, CO Ms. Angela Neller, Wanapum Heritage Center, Beverly, WA Ms. Bonnie Newsom, Smithsonian Institution, National Museum of Natural History, (Penobscot Nation), Washington, DC Ms. Megon Noble, Univ. of Washington, Burke Museum, Seattle, WA Ms. Anna Pardo, U.S. Dept. of Interior, Bureau of Indian Affairs, Reston, VA Ms. Pat Parker, American Indian Liaison Office, National Park Service, Washington, DC Ms. Lori Percee, Stone Mountain, GA Ms. Rhiannon Peshniak, State University of New York – Oswego, Oswego, NY Mr. Doug Pippin, State University of New York, Oswego, NY Ms. Melissa Powell, Smithsonian Institution, National Museum of Natural History, Washington, DC Mr. Roman Powell, Hickory Ground, Tulsa, OK Ms. Rachel Rosenthal, Department of the Interior, Washington, DC Mr. Paul Rubenstein, US Dept. of Defense, Army COE, Washington, DC Mr. David Ruppert, National Park Service, Washington, DC Mr. Owen Sapulpa, The Muscogee (Creek) Nation, Hickory Ground, Tulsa, OK Ms. Lauren Sieg, Smithsonian Institution, National Museum of the American Indian, Washington, DC ______NAGPRA REVIEW COMMITTEE MEETING MINUTES November 28-29, 2012, page 6

Mr. Chuck Smythe, U.S. Dept. of the Interior, National Park Service, Boston, MA Mr. Terry Snowball, Smithsonian Institution, National Museum of the American Indian, Washington, DC Mr. Emman Spain, The Muscogee (Creek) Nation, Konawa, OK Mr. Robert Sutton, U.S. Dept. of the Interior, National Park Service, Washington, DC Ms. Jackie Swift, Smithsonian Institution, National Museum of the American Indian, Washington, DC Mr. George Thompson, Mekko, The Muscogee (Creek) Nation, Hickory Ground, Wetumpka, OK Ms. Semana Thompson, Gila River Indian Community, Sacaton, AZ N. K. Vickery, Smithsonian Institution, National Museum of the American Indian, Washington, DC Mr. Adam Watson, American Museum of Natural History, New York, NY Ms. Leslie Wheelock, National Congress of the American Indian, Washington, DC Ms. Karen Wurzburger, U.S. Dept. of Interior, National Park Service, Intermountain Region, Denver, CO Mr. Fred York, National Park Service, Pacific West Region, Seattle, WA Mr. Robert Yargi, Mekko, The Muscogee (Creek) Nation, Okemah, OK Ms. Marci Zebruwski, State University of New York – Oswego, Oswego, NY

Comments by Designated Federal Officer

Ms. Hutt stated that the Review Committee’s Charter was signed by the Secretary of the Interior on November 15, 2012, and filed with Congress on November 26, 2012. The Charter is in effect for two years and will expire on November 26, 2014. Ms. Hutt stated that the Federal Advisory Committee Act (FACA) requirements were met regarding the publication of the meeting notice and agenda prior to the meeting. Ms. Hutt stated that the regulations that guide the implementation of NAGPRA are due for renewal through the OMB every three years; these regulations were renewed on a timely basis and will be in effect through November 18, 2015. Ms. Hutt reported that the 2010 Government Accountability Office’s report on NAGPRA is now officially closed, although several aspects of the report are ongoing, such as Federal agency reporting of the number of repatriated individuals. This information is captured in the National NAGPRA Program report.

Ms. Hutt stated that following the November 2010 meeting in Washington, DC, ethics concerns were raised regarding gifts given to the Review Committee members, as well as the manner in which the meeting was conducted. These matters were reviewed by the DOI Ethics Office, which determined that there was no criminal activity as a result of the gifts (which had been promptly returned) and the Office would not make a finding regarding the conduct of the meeting. The decision on whether or not to publish notices in the Federal Register reflecting the Review Committee’s findings and recommendations regarding the two disputes was referred back to the Assistant Secretary, with a stipulation that any published notice contain the caveat that such findings and recommendations were those of the Review Committee and not the Secretary of the Interior or a designee. Ms. Hutt stated that such notices are making their way through the approval process. Decisions regarding meeting operations were referred back to the Manager of the National NAGPRA Program with the proviso that meetings of the Review Committee be conducted in a manner which presents a fair and impartial environment for all. To that end, the National NAGPRA Program has offered both ethics and leadership training opportunities for the Review Committee members. Ms. Hutt stated that under FACA, the Review Committee members, as Special Government Employees, cannot receive gifts that exceed a certain amount (the FACA rule is $20 per occasion, not to exceed $50 in a calendar year).

Report: National NAGPRA Program Report on the Implementation of NAGPRA in FY 2012

Ms. Hutt stated that the Review Committee members were welcome to comment on the draft National NAGPRA Program report on the implementation of NAGPRA in FY 2012. Once finalized, the report will be posted on the National NAGPRA Program website. National NAGPRA Program staff members presented brief summaries of their areas of expertise.

Notices Ms. O’Brien, Notice Coordinator, stated that for FY 2012, the National NAGPRA Program published 188 notices, with an average processing time of four to eight weeks from submission to publication. A total of 49 Notices of Inventory Completion were published under 43 C.F.R. 10.11, representing 37 percent of the total number of Notices ______NAGPRA REVIEW COMMITTEE MEETING MINUTES November 28-29, 2012, page 7

of Inventory Completion published.

Training Mr. Tarler, Training Coordinator, stated that during FY 2012 a total of 29 training events occurred, providing approximately 184 hours of training to over 1,400 participants. This training included 8 webinars, which provided training to 321 participants. In addition, the National NAGPRA Program’s YouTube channel offers on-demand access to an eight-segment training video series.

Civil Penalties Mr. Tarler, Civil Penalties Enforcement Coordinator, stated that investigations were completed for nine counts alleged against three museums for failure to comply with the requirements of NAGPRA, in FY 2012. Of the nine counts, eight were determined to be unsubstantiated and one was determined to be substantiated. This result is consistent with the historical determination rate – approximately 15 percent of alleged counts are determined to be substantiated and 85 percent of alleged counts are determined to be unsubstantiated. To date, a total of 144 counts of alleged museum failure to comply have been investigated. Mr. Tarler stated that, since the start of FY 2011, the National NAGPRA Program has not had a civil penalty investigator. Funds were made available in FY 2012 for contract work on civil penalties, and Ms. Keller O’Loughlin was hired as a civil penalty analyst.

Ms. Keller O’Loughlin, Civil Penalty Analyst, stated she was hired as a temporary independent contractor with the National NAGPRA Program. As a civil penalty analyst, Ms. O’Loughlin organizes the civil penalties historical record, reviews information on outstanding allegations of failure to comply, and makes recommendations based on the facts alleged in the complaints. As a contractor, Ms. O’Loughlin is unable to perform any investigative work.

Mr. Wright, Jr., asked how an allegation is determined to be substantiated or unsubstantiated. Mr. Tarler stated that there are nine ways in which a museum might fail to comply with the requirements of NAGPRA, as set forth at 43 C.F.R. 10.12. The facts of each count are reviewed to determine whether the requirements of NAGPRA have been met. If the facts set forth in the allegation are insufficient to make a determination, then an investigation is conducted. Any issues of law that arise are referred to counsel. Mr. Wright, Jr., asked about the process following a determination with regard to the party who initiated the allegation. Mr. Tarler stated that once a determination is made, the party is notified of the determination.

Mr. Wright, Jr., noted the large number of allegations and asked if Mr. Tarler has noticed any trends. Mr. Tarler stated that in the last several years a large number of allegations have been submitted by an anonymous individual and are basically recitations of press items without any additional information. In addition, the increase in availability of information in National NAGPRA Program databases online has allowed Indian tribes, Native Hawaiian organizations and lineal descendants greater opportunity to check on museum compliance. Mr. Tarler stated that he has not noted any particular trends, other than the fact that Indian tribes represent the greatest percentage of parties alleging failures to comply.

Ms. Atalay stated that, while she appreciates the work of the civil penalty analyst, she was very concerned about the continued lack of a civil penalties investigator, and asked for clarification of the decision to hire an analyst. Ms. Hutt stated that during the contracting process, the National NAGPRA Program learned that contractors were not eligible to be investigators. Ms. Hutt stated she was currently in discussions on staffing an investigator position, which is hopefully on track for FY 2014. Ms. Hutt stated that Ms. O’Loughlin’s work was invaluable in organizing the civil penalties records, and will allow the new investigator to immediately begin substantive work.

Ms. Worl noted that this issue would be appropriate for the Review Committee’s report to Congress. Mr. Barker stated that every allegation source is perfectly credible, but asked if the large number of allegations was due to an increased number of violations or due to the anonymous individual submitting a large number of allegations. Mr. Tarler stated that there were different ways to consider the information, for example, considering the number of allegations versus the number of counts alleged in the allegations. Mr. Tarler stated he would be unable to answer the question directly without analyzing the allegation letters. Ms. Atalay agreed with Mr. Barker that all allegations are important, and she asked for additional information on the number of allegations made by the anonymous individual compared to allegations coming from other parties. Ms. O’Loughlin stated that the anonymous individual has produced 20 to 25 percent of the 64 active cases, from 2010 to the present. Mr. Hemenway asked what the most common allegation was. Mr. Tarler stated that the most common allegation of failure to comply was failure to complete an inventory.

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Digitization and Archiving Project Ms. Harness, Intern, described her efforts to date on the digitization and archiving project. Ms. Hutt stated that the National NAGPRA Program was moving to paperless records, working to archive over 22 years of NAGPRA documents. To date, over 300 boxes have been moved to the National Archives and Records Administration (NARA). This will increase public access to information, although the previous concerns regarding potentially sensitive items were noted and consultation with Indian tribes will be conducted to address the issue before the release of any potentially sensitive information.

Web News and Data Management Ms. Soriano, Website and Data Management Coordinator, and Ms. Solis, Intern, summarized their recent work on the NAGPRA database system and website. Ms. Solis stated that the primary objective of the digitization project was to create and promote a consistently searchable and usable system, while creating digital documents with visual integrity and sustained long-term access. Ms. Solis stated that Ms. Coates, Program Secretary, has worked to organize and archive National NAGPRA Program correspondence.

Grants Ms. Hutt stated that she has been filling the duties of Grants Administrator, with Ms. Sangita Chari’s recent move to a position in the Office of the NPS Director.

Regulations Ms. Hutt stated that the proposed rule on unclaimed human remains and cultural items removed from Federal lands after November 16, 1990, to be codified at 43 C.F.R. Section 10.7, is under review at the Office of Management and Budget (OMB). The proposed rule will be published for public comment when released. Mr. Wright, Jr., asked about the reference to a “discretionary review of 43 C.F.R. Part 10” in the draft National NAGPRA Program report for FY 2012. Ms. Hutt stated that the National NAGPRA Program conducted a thorough consultation process in 2010, asking for input on the possible amendment of 43 C.F.R. Part 10 from the Review Committee and NAGPRA constituents. Information gathered during this process in the pre-drafting phase will be utilized when drafting the amended regulations. The draft regulations will be carefully scrutinized by counsel and the Office of the Assistant Secretary, and will then be published subject to a comment period. The public comment period will be lengthy and will offer opportunities for NAGPRA constituents to learn about the draft regulations prior to commenting, to allow for an informed, transparent process.

Action Item: CUI Database Recommendation

Ms. Hutt stated that the purpose of the culturally unidentifiable (CUI) database was disclosure of information on approximately 130,000 culturally unidentifiable human remains in museum and Federal agency collections. This information is to be used to facilitate consultation with Indian tribes, with the ultimate goal of either, one, receiving amended inventories that move individuals from “culturally unidentifiable” to “culturally affiliated” or, two, Indian tribes requesting disposition of the individuals as culturally unidentifiable. Since the implementation of the database, approximately 10,000 individuals have been resolved. When the culturally unidentifiable database was being constructed and populated, Program staff noted that one or more museums had submitted documents affecting approximately 10,000 individuals, which did not provide the minimum number of individuals in the inventory, or did not determine whether the individuals in the inventory were culturally unidentifiable or culturally affiliated, or both. In order to make the submitted information available to everyone, Ms. Hutt stated she made the decision that the National NAGPRA Program would enter it on the CUI database as a default entry, and would estimate the minimum number of individuals (MNI). Although they appear to have been determined by the museum or Federal agency submitting the inventory to be “culturally unidentifiable,” in fact, no such determination was made in the first instance. In the ensuing eight years, the status of some of these individuals has been resolved, but the unresolved entries remain on the CUI database.

Ms. Hutt stated that the CUI database was a statutory function of the Review Committee, 25 U.S.C. 3006 (c)(5), and asked for a recommendation from the Review Committee on the next step in clarifying the decision making, or lack thereof, that occurred with respect to these individuals. These default entries result in a higher burden on Indian tribes wishing to show that the individuals in question are culturally affiliated with them, by requiring a preponderance of evidence standard rather than the reasonable basis standard utilized during the initial ______NAGPRA REVIEW COMMITTEE MEETING MINUTES November 28-29, 2012, page 9

determination process. Ms. Hutt stated that options include, but are not limited to: removing the items from the database until completed inventories are submitted; taking no action until the information is replaced by museum decisions; maintaining the entries on the database with an indication of default entry; or following other guidance as determined by the Review Committee.

Review Committee Questions and Discussion Mr. Wright, Jr., stated that this situation could cause Indian tribes to consider museums’ actions as noncompliant due to the absence of consultation in making culturally unidentifiable determinations, when in fact no such determinations were made. Having the Program make the determinations absent consultation with a museum or Indian tribe can cause further dilemmas in the completion of repatriations. Ms. Atalay asked for clarification on the Program’s determinations. Ms. Hutt stated that the Program estimated the MNI and included the information on the CUI database as an information disclosure mechanism, not a determination of culturally unidentifiable. While these entries appear to be a decision, they are not.

Mr. Barker stated that this situation presents two issues: first, the number of MNI was approximated and may be markedly different; and two, having the individuals listed on the CUI database raises the evidence requirements for disposition from reasonable basis to preponderance of the evidence. Ms. Farm asked if the Program has discussed this issue with the affected museums. Ms. Hutt stated that although she has discussed the need for inventories from the museums, she has not discussed the issue in the context of the database, as it is a function of the Review Committee.

Ms. Atalay stated she felt it would be important and useful to preserve the information in some way, to allow continued access and use by Indian tribes and others. Mr. Barker asked about the possibility of utilizing a separate database. Ms. Hutt stated that would be an option, but would require a significant investment of time and resources, and would result in the creation of a means to disclose information on individuals known to exist but not submitted in the form of an inventory. Ms. Atalay stated that this demonstrates a larger issue that needs to be addressed; the fact that museums have submitted inventories on collections for which determinations regarding cultural affiliation have not been made, which would indicate incomplete inventories. Ms. Atalay asked about the compliance status of such institutions. Ms. Hutt stated that submission of an inventory is a predicate compliance matter.

Ms. Farm recommended that the information remain on the CUI database with a notation that indicates the circumstances of the default entries. Mr. John and Mr. Wright, Jr., agreed with Ms. Farm’s recommendation.

Review Committee Motion Ms. Atalay made a motion that the information be maintained on the CUI database with a notation regarding the default status and that the National NAGPRA Program communicate with the museums regarding the completion of the process of determining cultural affiliation. Mr. John seconded the motion. Mr. Barker and Ms. Mattix developed the notation language, as follows: “**The minimum number of individuals (MNI) listed is an estimate made by the National NAGPRA Program and not a determination by the Federal agency or museum with possession or control. These MNI have not been determined to be either culturally unidentifiable or culturally affiliated, however, the data was made available to the National NAGPRA Program and is provided here for information purposes.” The motion passed by unanimous vote.

Presentations: Research Reports

Ms. Hutt stated that seven reports were included as addenda to the National NAGPRA Program report. These reports respond to requests from the Review Committee during previous meetings. The reports include: Mapping the Culturally Unidentifiable and Culturally Affiliated NAGPRA Databases (October 2012); Museum of Northern Arizona Report on NAGPRA Training (October 24, 2012); NAGPRA Grants Analysis (October 2012); NAGPRA Grants Expenditures during FY 2008-2012; Training Conducted through a Cooperative Agreement with the National Preservation Institute (October 2012); CUI Dispositions Report (2010); and Compliance among Museums with the Largest Collections of Human Remains (2010). Ms. Hutt and Program staff briefly summarized the purpose of each report, and stated that the National NAGPRA Program would welcome feedback from the Review Committee.

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Presentation: The Columbia Plateau Inter-Tribal Repatriation Group

Presentation Ms. Jacqueline Cook, Repatriation Specialist, Confederated Tribes of the Colville Reservation, thanked the Review Committee for the opportunity to provide testimony on the tribes’ NAGPRA experience. The Columbia Plateau Inter-Tribal Repatriation Group consists of the tribes and bands from the Columbia Plateau in the Pacific Northwest states of Washington, Idaho, and Oregon. These include the Confederated Tribes of the Colville Reservation, the Confederated Tribes of the Umatilla Indian Reservation, the Confederated Tribes of the Warm Springs Reservation of Oregon, Confederated Tribes and Bands of the Yakama Nation, the Nez Perce Tribe, and the Wanapum Band of Priest Rapids (a non-federally recognized Indian group). In 2012, the Columbia Plateau Inter-Tribal Repatriation Group repatriated a minimum number of 132 individuals and 2,808 funerary objects from 13 different institutions. Transfer, preparation and reburial all took place over a total period of 20 days. In addition, meetings were held with museums and Federal agencies; a tribal member who agreed to allow the use of his family cemetery on allotment land to rebury CUI from the Burke Museum’s statewide CUI repatriation project; and Dr. Doug Owsley regarding the plaintiff scientists’ findings from studies completed on the Ancient One (also known as Kennewick Man).

Ms. Cook outlined several frustrations the tribes have experienced regarding inadvertent discoveries that have occurred on Federal lands since November 16, 1990. While the intent of the regulations pertaining to inadvertent discoveries is clear, the following grey areas exist: 1. The regulations do not ensure timely resolution of inadvertent discoveries; one of the largest frustrations has been the amount of time between notification and the initial consultation. Ms. Cook stated that the majority of inadvertent discoveries in their area are the result of erosion in the Columbia River area, and the process can take months or even years to complete. 2. Federal agencies do not always follow the regulations, and sometimes misinterpret the law. 3. There is a prevailing attitude that finds with single or multiple elements are not quite as important as complete burials. 4. Federal agencies are not sufficiently prepared with internal mechanisms for completing the process in a timely manner.

Ms. Cook stated that the tribes’ full, written testimony submitted to the Review Committee contains information on their experiences with specific Federal agencies; however, she stated their frustration with Federal agencies concerning inadvertent discoveries should in no way diminish the hard work these same Federal agencies have done regarding their collections.

Ms. Cook stated that the Columbia Plateau Inter-Tribal Repatriation Group respectfully suggests that timelines for completing the process of inadvertent discoveries be included in the revision of the regulations, with a written plan of action, milestone markers, and checklists that respect tribal consultation. Additional training should be developed for Federal agencies on inadvertent discoveries. Ms. Cook thanked both the Review Committee for the opportunity to speak and the National NAGPRA Program staff for their hard work over the past year.

Mr. Rex Buck, Jr., Wanapum Band of Priest Rapids, thanked the Review Committee for the opportunity to speak. On behalf of his Elders, Mr. Buck, Jr., acknowledged the religious and cultural sensitivity of his people. Mr. Buck, Jr., stated that the NAGPRA compliance process is not easy, and that it occurs with a lot of prayer and ceremony. The delays and runarounds by Federal agencies make his people feel as though they are not being treated in the proper way.

Mr. Armand Minthorn, Confederated Tribes of the Umatilla Indian Reservation, stated that the NAGPRA compliance process can be very challenging, but that the Elders encourage patience and persistence to achieve tribal goals. Mr. Minthorn stated that the group is requesting the Review Committee’s help in establishing timelines in order to address the current frustrating delays with the process of resolving inadvertent discoveries. Mr. Minthorn thanked the Review Committee and National NAGPRA Program staff for their hard work.

Review Committee Questions and Discussion Ms. Worl thanked the presenters for their comments, and requested that the National NAGPRA Program consider specific training efforts to address inadvertent discoveries and report back to the Review Committee. Mr. Wright, Jr., expressed his thanks and appreciation to the Columbia Plateau Inter-Tribal Repatriation Group. Mr. Wright, Jr., stated that part of the requirements regarding inadvertent discoveries is consultation both between Federal agencies ______NAGPRA REVIEW COMMITTEE MEETING MINUTES November 28-29, 2012, page 11

and Indian tribes and among Federal agencies. NAGPRA requires that consultation with Indian tribes needs to be initiated within three working days of an inadvertent discovery on Federal lands. This would be an important component of training to ensure that all Federal agencies, including the DOI, are aware of their responsibilities. Ms. Cook stated that, while most Federal agencies meet the three-day consultation requirement, the main concern is with the lack of a timeline for the process following the initial consultation.

Mr. Minthorn stressed the importance of consultation. All Federal agencies are required to have a consultation policy; however, some agencies do not use their policies. Mr. Minthorn stated that a dual process needs to occur between NAGPRA and Section 106 of the National Historic Preservation Act regarding inadvertent discoveries. Ms. Hutt stated that the National NAGPRA Program is working on a training document regarding NAGPRA and Section 106, and hopes to present this information to the Review Committee at an upcoming meeting.

Action Item: CUI Disposition Request, University of Washington Anthropology Department, WA

Presentation Ms. Megon Noble, NAGPRA Coordinator for the Archeology Division, Burke Museum, University of Washington, summarized the CUI disposition request of the University of Washington Anthropology Department. Ms. Noble was joined by Ms. Jess Milhausen. Ms. Noble stated that the Burke Museum has been working for the past year to facilitate consultation regarding the Native American human remains of 13 culturally unidentifiable individuals with no direct provenience information. The Burke Museum seeks the Review Committee’s support to move forward with the Washington State Inter-Tribal Consortium Disposition Agreement that would permit the transfer and respectful reburial of the 13 individuals. The Washington State Inter-Tribal Consortium consists of 12 Indian tribes with aboriginal territory in Washington State, who would collectively claim the human remains for reburial. Ms. Noble provided a brief history of the Anthropology Department teaching collection, which was collected through various means and from various geographic locations, but primarily stemmed during the tenure of physical anthropologist Dr. Daris Swindler, a faculty member at the University of Washington from 1968 to 1991. When he joined the University of Washington, Dr. Swindler brought human remains he collected while working at both Michigan State University and the University of South Carolina. Although documentation was not maintained on individual human remains, some information on the collection was found either on or in the boxes holding the human remains. A total of 36 Native American individuals were identified in the Department of Anthropology’s teaching collection, 35 of whom were determined to be culturally unidentifiable. After consultation, the status of all but 13 of the human remains in the collection has been resolved and proper notices published.

The remaining 13 individuals have unknown proveniences and have no distinguishing morphological features that might identify their places of origin. In the absence of such documentation, and based on the history of the collection as a whole, the remains are from either Washington or South Carolina. A total of 50 Indian tribes from Washington, South Carolina and Michigan were provided an opportunity to consult, and 34 Indian tribes actively participated in the consultation process. Ms. Noble summarized the consultation process, during which a joint disposition agreement was developed as the most appropriate option for returning these ancestors. Ms. Noble stated that the consultation work would not have been possible without the financial support provided through a National NAGPRA documentation grant.

Mr. Armand Minthorn, Confederated Tribes of the Umatilla Indian Reservation, stated that the Indian tribes from the three different areas came together in agreement that all human remains need to be treated as sacred, whether Indian or non-Indian. Mr. Minthorn stated that the group is seeking the Review Committee’s support so these human remains can be put back in the ground where they belong. The Creator knows who is doing this work, and the people who do this work need to have something in their hearts to guide them, whether it is a song or the words and teachings of Elders.

Mr. Rex Buck, Jr., Wanapum Band of Priest Rapids, stated he appreciated the opportunity to speak and ask for support for the return of these human remains. Mr. Buck, Jr., stated that, although this work is challenging, the parties have come together out of respect for the human remains. Mr. Buck, Jr., stated that at no time were there any bad words or feelings among those working on the matter, and he hoped that this work environment would continue in the future.

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Ms. Jacqueline Cook, Repatriation Specialist, Confederated Tribes of the Colville Reservation, stated that the tribes came together to address the issue of reburial location. A tribal member in Ellensburg, located in the center of the state of Washington, offered his family cemetery on allotment land as a reburial location.

Ms. Jackie Ferry, Cultural Resource Program Manager, Samish Indian Nation, stated that the various Indian tribes came together, despite their cultural differences, to reach their mutual goal of respectful reburial of the human remains.

Review Committee Motion Mr. Wright, Jr., made a motion that the Review Committee approve the CUI disposition agreement request from the University of Washington Anthropology Department to the Washington State Inter-Tribal Consortium. Ms. Atalay seconded the motion. The motion passed by unanimous vote. Ms. Worl stated this request was a good model, which had the necessary information and demonstrated a cooperative relationship.

Comments by Principal Deputy Assistant Secretary for Fish and Wildlife and Parks – Rachel Jacobson

Ms. Rachel Jacobson, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks, stated she was pleased the Review Committee meeting was at the National Museum of the American Indian, and thanked Director Kevin Gover and the repatriation staff for hosting the meeting. Ms. Jacobson stated that, in the role of Assistant Secretary of Fish and Wildlife and Parks, she has jurisdiction over the National NAGPRA Program. Congress enacted the NAGPRA statute to address longstanding issues concerning the ownership or control of the disposition of Native American human remains and cultural items, and created the Review Committee to represent the NAGPRA constituencies. The Department of the Interior and its individual land-managing agencies take their consultation and repatriation responsibilities under NAGPRA very seriously, and support efforts to ensure NAGPRA compliance. In addition, the regulations need to be simplified to improve understanding and compliance. Any proposed amendments to the current set of regulations will be thoroughly reviewed by the leadership at the NPS and throughout the DOI, and will include input by the Review Committee and the public. Ms. Jacobson stated that the DOI is committed to continuing its NAGPRA implementation activities and working with the Review Committee to resolve issues that arise regarding the NAGPRA compliance process. On behalf of the Secretary of the Interior, Ms. Jacobson expressed appreciation for all Federal agencies, Indian tribes and museums who work together on NAGPRA compliance. Ms. Jacobson acknowledged that the terms of Ms. Atalay and Mr. Hemenway on the Review Committee are concluding, and she thanked them for their active, diligent and valuable service.

Presentation: NAGPRA Update – Bureau of Indian Affairs

Presentation Ms. Anna Pardo, Museum Program Manager and National NAGPRA Coordinator, Office of the Assistant Secretary – Indian Affairs (IA), DOI, thanked the Review Committee for the opportunity to speak on NAGPRA implementation. Ms. Pardo was joined by Mr. Marv Keller, NAGPRA Coordinator, Federal Preservation Officer and NEPA Coordinator, IA. Ms. Pardo stated that program responsibilities fall under IA in the Office of Facilities, Environmental and Cultural Resources, and within the Division of Environmental and Cultural Resource Management. Field responsibility rests with the 12 Bureau of Indian Affairs (BIA) regional offices, and the 12 BIA regional archeologists provide subject matter expertise and serve as important contacts for working with Indian tribes in each region. Ms. Pardo stated that IA controls archeological resources, including those subject to NAGPRA, that were removed from tribal lands under the authority of Antiquities Act permits issued between June 8, 1906, and October 31, 1979. The goal of IA is to repatriate all human remains and funerary objects removed from tribal lands and currently housed in repositories.

Ms. Pardo stated that a question was raised by the Review Committee at the last meeting regarding what happens when a repository is unclear about who has control over items. Ms. Pardo stated that in the last six months, two such cases occurred. IA thoroughly reviewed the information provided by the repositories, made a determination that the items came from tribal lands, and asserted control over the items. Subsequently, one notice was published and another one currently is in draft form. Ms. Pardo stated her opinion that, through the intensified research being

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undertaken by their staffs, repositories have started to contact IA for further review in matters where the control of cultural items is unclear.

Ms. Pardo stated that IA has new contracts in place with three repositories to complete NAGPRA work – the Museum of Northern Arizona, the Maxwell Museum of Anthropology, and the Museum of Indian Arts and Culture – and that an additional three contracts are in the process of finalization. Ms. Pardo stated that contracts with repositories yield a lot of information, and she described the work being done under several existing and completed contracts, including a number of substantial repatriations and reburials.

Ms. Pardo stated that IA continues to publish joint notices with partner repositories. During FY 2012, IA published six Notices of Inventory Completion and two Notices of Intent to Repatriate Cultural Items, accounting for 1,184 individual sets of human remains, 1,732 associated funerary objects, and 1,154 unassociated funerary objects. In addition, one Notice of Inventory Completion was just recently published, accounting for 13 individual sets of human remains and 23 associated funerary objects. In FY 2012, IA repatriated 1,425 individual sets of human remains, 3,342 associated funerary objects, and 1,154 unassociated funerary objects. A total of 49 individual sets of human remains and 290 associated funerary objects for which notices have been published remain in repositories, due in large part to Indian tribes not yet making arrangements for transfer of possession. Ms. Pardo noted that the current economy is one barrier to implementation. IA reviews the National NAGPRA databases for accuracy by comparing data on the databases to information in BIA files, and corrects any discrepancies. IA continues to work closely with its museum and Federal agency partners, sharing information with other DOI bureaus on DOI collections.

Review Committee Questions and Discussion Ms. Atalay thanked Ms. Pardo for her presentation. Ms. Atalay stated that at the last meeting, Ms. Pardo stated that not all IA collections in repositories have been identified. Ms. Atalay asked if there were any steps the Review Committee could take that would assist this identification; for example, considering an amendment to the law that would require museums to inform IA if they hold these collections or are acting as a repository. Ms. Pardo stated that IA receives collection information through a variety of ways, including repository partners, Bureau colleagues or DOI colleagues in other bureaus. Additional options are being considered, such as a detailed survey, to identify collections. Ms. Pardo stated that any steps that encourage communication and information sharing would be helpful. Mr. Wright, Jr., asked if Ms. Pardo would provide a copy of her presentation to the Review Committee, and Ms. Pardo agreed to do so.

Action Item: CUI Disposition Request, Central Washington University

Presentation Ms. Lourdes Henbry-DeLeon, NAGPRA Program Director, Central Washington University, presented a request from Central Washington University for the disposition of culturally unidentifiable Native American human remains representing one individual to the Wanapum Band of Priest Rapids, a nonfederally recognized Indian group. The human remains came from the aboriginal territory of the Wanapum people. Central Washington University consulted with the Wanapum Band of Priest Rapids, as well as the Colville Confederated Tribes and the Confederated Tribes and Bands of the Yakama Indian Nation, who are the federally recognized Indian tribes in the area where the human remains were found. Both federally recognized Indian tribes agree with the disposition to the Wanapum Band of Priest Rapids. Ms. Henbry-DeLeon gave a brief summary of the collection history of the human remains. The human remains were removed from an archeology site by amateur archeologists in 1957, prior to an actual archeological survey and excavation. The land where the site was located is now under water. The human remains were eventually given to the Burke Museum, University of Washington, and later transferred to Central Washington University.

Mr. Rex Buck, Jr., Wanapum Band of Priest Rapids, stated that the land from which the human remains were removed was a fishing place located on sacred islands that were the homelands of his people into the 1950s. Today his people live just a mile and a half from the site. Mr. Buck, Jr., stated that his people have been on these lands since time immemorial and still maintain their language, culture and beliefs.

Review Committee Motion Ms. Atalay made a motion that the Review Committee approve the CUI disposition request from Central ______NAGPRA REVIEW COMMITTEE MEETING MINUTES November 28-29, 2012, page 14

Washington University to the Wanapum Band of Priest Rapids. Mr. John seconded the motion. The motion passed by unanimous vote.

Ms. Farm stated that the parties’ organized approach in outlining the steps in the disposition request inspired her to request that the National NAGPRA Program develop a checklist of the steps needed to complete disposition requests. This checklist would be helpful for the parties, as well as the Review Committee members.

Action Item: CUI Disposition Request, University of New Hampshire

Presentation Ms. Donna Roberts Moody, Abenaki Nation, presented a traditional offering of tobacco. Ms. Roberts Moody stated that the Abenaki people have been in their homelands since time immemorial. The Abenaki Nation requests a recommendation from the Review Committee for the disposition of a cremation burial from Plum Island, in the southern portion of the Abenaki Nation’s traditional homeland.

Mr. John Moody, ethnohistorian, stated he works on repatriation and site protection with the Abenaki Nation. Mr. Moody stated that the Abenaki homelands centered on the present-day Massachusetts border, Vermont, New Hampshire, Western Maine, and Southern Quebec. There is consensus among the Abenaki, the Penobscot, the Wabanaki Tribes of Maine, and the Wampanoag Confederacy to proceed with this disposition together, with the Abenaki as the lead. Mr. Moody gave a brief history of the cremation burial, which was excavated 35 year ago by non-Native amateur archeologists and eventually ended up at the University of New Hampshire. Very little research was done, but based on the materials, the burial was deemed to be from a Native American site. Three rounds of analysis were conducted, beginning in the early 2000s, with a final round by Ms. Olivia Herschensohn from Harvard University, who determined that the cremation very likely contains human remains. No destructive analysis was performed, as that would go against traditional Abenaki beliefs.

Ms. Lisa MacFarlane, Senior Vice Provost for Academic Affairs, University of New Hampshire, stated that the University of New Hampshire has completed significant consultation with Native people throughout the New England area, and has completed this process with the same level of due diligence and criteria as in previous applications for the disposition of human remains.

Review Committee Questions and Discussion Mr. Barker asked for clarification of whether the collection in the request contained human remains. Ms. MacFarlane stated that there were two different assessments of the collection, which were accepted by the University of New Hampshire; a traditional Abenaki Nation assessment, which stated that human remains are present, and an osteological archeological assessment, which stated that human remains are likely present. Ms. Farm stated that the Review Committee’s jurisdiction was limited to Native American human remains, and asked if the human remains in the collection were Native American. Mr. Moody stated that the circumstantial evidence – stone artifacts were present and the cremation was buried within a shell midden – supports both an academic and a traditional consensus that the human remains are Native American. Ms. Atalay stated that, from an archeological standpoint, the fact that human remains were found in a shell midden was fairly determinative of the site being a Native American site.

Review Committee Motion Ms. Atalay made a motion that the Review Committee approve the CUI disposition request from the University of New Hampshire to the Abenaki Nation. Mr. Hemenway seconded the motion. Ms. Mattix asked for clarification of the involvement of federally recognized Indian tribes with an interest in the area. Ms. MacFarlane stated that the University of New Hampshire was presently consulting with the federally recognized Indian tribes on the proposed disposition. No objections were raised by the federally recognized Indian tribes with regard to previous dispositions, and the university has received no indication that any objections would be raised with regard to this request. The Review Committee agreed to move forward with the request with the condition that the University of New Hampshire complete consultation and receive no objection from federally recognized Indian tribes. The motion passed by majority vote, with one vote against (Mr. Barker).

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Presentation: Hickory Ground

Presentation Mr. Terry Cole, NAGPRA Specialist, Muscogee (Creek) Nation, thanked the Review Committee for the opportunity to speak.

Mekko George Thompson, Muscogee (Creek) Nation, stated he has held the position of Mekko (chief/leaders) for over 42 years. Mekko Thompson summarized the issue faced by the Muscogee (Creek) Nation concerning the sacred Hickory Ground. Mekko Thompson stated the issue involving the excavation of ancestral remains began in 2006. The Hickory Ground site is within the aboriginal homelands of the Muscogee (Creek) Nation, and is also a sacred site. Mekko Thompson stated that they are seeking assistance to make sure that the human remains are returned back to the ground.

Mr. Sam Bonnie Deere, Hickory Ground, stated that they are a grass-roots people, removed from their homelands in the early 1830s. The Poarch Band of Creeks, a federally recognized tribe, is a group that stayed behind, hidden, during the removal. The Hickory Ground site, near Wetumpka, AL, has been listed on the National Register of Historic Places. When the Poarch Band of Creeks became federally recognized in 1984, they claimed the property, stating that they would preserve it in its natural state. The property was given to them under a 20-year stipulation, following which the Poarch Band of Creeks began excavation and construction of a casino and parking lot. Approximately 57 human remains were removed, wrapped in newspaper and placed in plastic buckets, and then stored in a metal building. Mr. Deere stated they were opposed to the fact that the construction is on a burial site, not to the construction itself. In April of 2012, a mass burial was conducted, with all human remains being put in one hole. Mr. Deere stated they were before the Review Committee seeking assistance to ensure the proper and respectful reburial of these human remains, and that they had the support of the Indian tribes in Oklahoma.

Review Committee Questions and Discussion Ms. Worl asked for clarification of the Review Committee’s jurisdiction. Mr. Simpson stated that under the statute the Review Committee’s jurisdiction is limited, and does not extend to this issue. The statute protects human remains and cultural items excavated from sites, not the actual gravesites. The Review Committee is charged with advising the Secretary and working through the issues under Section 7 of the Act, which covers the repatriation of human remains and cultural items from museums and Federal agencies. The exhumation and treatment of human remains removed from Federal or tribal land after November 16, 1990, falls under Section 3 of the Act. Compliance with Section 3 of the Act falls to the affected Federal agencies and Indian tribes. The Review Committee members expressed their sympathy, and recommended that the parties discuss this issue with representatives of the BIA and NATHPO, both present at the meeting, for possible solutions.

Mr. Roman Powell, Hickory Ground, stated that it appears NAGPRA addresses issues occurring in the present day, but does not fully account for things that took place in the past, such as the removal of Indian tribes from their aboriginal homelands. Mr. Powell hoped the Review Committee could perhaps act to help change the law to address the present matter. Mr. Wright, Jr., stated that relocation was an issue faced by Indian tribes across the country, and stated that he believed Congress intended to address relocation issues. Mr. Simpson agreed, and stated that Congress included provisions in the statute that recognize, in priority order, the rights of lineal descendants, then culturally affiliated tribes, and then Indian tribes with a geographic connection to the land. However, when human remains are found on tribal land, the priority order starts with lineal descendants and stops with the tribe on whose tribal land the human remains are found. Ms. Worl stated that the Review Committee could recommend that Congress convene a committee to assess the situation and identify possible action that could be taken to protect the ancestors and interests of Indian tribes who no longer own the land. Mr. John described a very similar situation his tribe faced when working with the Eastern Shawnee in West Virginia. Mr. Barker raised the possibility of using historic preservation law to seek resolution of the issue.

Mr. Waylon Grey, Hickory Ground, stated the Poarch Band of Creeks obtained a preservation grant to purchase the land, by promising both the Hickory Ground and the Muscogee (Creek) Nation that the land would never be developed. Mr. Cole expressed appreciation for the suggestions of the Review Committee, and thanked the Review Committee for the opportunity to speak.

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Presentation: NPS Publication – American Indians in the Civil War

Mr. Robert Sutton, Chief Historian, NPS, stated that the NPS has initiated several publications on different topics in honor of the sesquicentennial (one-hundred-and-fiftieth anniversary) of the Civil War. Mr. Sutton summarized one publication on American Indians in the Civil War, which features essays from a number of notable scholars, including one chapter by Mr. Hemenway, “Company K, 1st Michigan Sharpshooters.” Mr. Sutton stated that this publication will highlight the participation of over 20,000 American Indians in the Civil War, with descriptions of a number of battles. Mr. Hemenway stated that his involvement started through the connection to a lineal descendant of his tribe of a member of Company K buried at the cemetery of the Petersburg National Battlefield. Mr. Hemenway stated he was happy to contribute to this project, which allowed an opportunity to highlight his tribe’s history.

Public Comment – November 28, 2012

State University of New York – Oswego Mr. Doug Pippin, NAGPRA Coordinator, State University of New York – Oswego (SUNY – Oswego), described the NAGPRA implementation efforts of SUNY – Oswego. Individuals present with Mr. Pippin include Ms. Marcie Zebruwski, Ms. Rhiannon Peshniak, Ms. Alexa Lucera, and Ms. Kathleen Blake. Mr. Pippin stated that SUNY – Oswego has been working to fulfill its NAGPRA responsibilities since 2005, when human remains were discovered in its collection. The fundamental difficulty encountered in NAGPRA compliance was the overall lack of documentation and information about the materials in the collections, which necessitated a complete review of the archeological collection. As of the fall semester 2012, more than 150,000 items from approximately 150 sites have been catalogued. Mr. Pippin stated that SUNY – Oswego has been very supportive of this work, providing space and equipment for the project, as well as creating a lab course in archeological collections management to begin the NAGPRA inventory process. Mr. Pippin acknowledged the hard work of over 80 students who have participated in the project to date. Mr. Pippin stated that SUNY – Oswego has agreed to renovate additional space in 2013 for the expanding needs of the archeology and forensic anthropology labs.

Lack of site records and site information necessitated the need for information gathering through irregular sources, such as oral histories of people who attended Oswego field schools, newspaper accounts of excavations, local historical societies and avocational archeology groups. These methods yielded significant results. In addition, increased research efforts in cooperation with the New York State Department of Parks, Recreation, and Historic Preservation and the New York State Museum produced information that enabled the identification of previously unknown site locations. The project utilizes a geographic information system database for the purposes of determining affiliation of human remains and funerary objects.

Mr. Pippin stated that SUNY – Oswego received three NAGPRA grants to support its efforts to document the archeological collections. The grants have allowed the university to hire qualified student workers and increase the rate of material processing and cataloguing. In addition, the grants have allowed the college to offer over 12 students the opportunity to participate in National NAGPRA training and Review Committee meetings. Mr. Pippin stated that lack of qualified staff has been an ongoing challenge, and in 2011, Ms. Kathleen Blake joined the SUNY – Oswego Anthropology Department faculty and agreed to assist on the project. SUNY – Oswego continues to compile information to improve its NAGPRA database and knowledge of its collection.

Review Committee Questions and Discussion Ms. Worl stated this was a great approach and a great opportunity for students. Ms. Worl suggested recruiting and involving tribal people, both on and off campus. Mr. Pippin stated that they have encouraged participation on campus and thanked Ms. Worl for her suggestion.

Ms. Christine Landrum Ms. Christine Landrum, Director, Office of Indian Affairs and American Culture (OIAAC), Intermountain Region, NPS, thanked the Review Committee for the opportunity to speak. Ms. Landrum stated that the OIAAC includes the NAGPRA Tribal Liaison and Cultural Anthropology Programs for the Intermountain Region, consisting of over 90 Park Service units in the states of Arizona, Colorado, Montana, New Mexico, Oklahoma, Texas, Utah and Wyoming. Ms. Landrum stated she would like to offer assistance from both the Intermountain Region of the NPS and the Colorado Lands Repatriation and Reinterment Workgroup to share and compile information related to the ______NAGPRA REVIEW COMMITTEE MEETING MINUTES November 28-29, 2012, page 17

issue of lands available for interment of Native American human remains following disposition under NAGPRA. The main purpose of the workgroup is to identify potential lands within the state of Colorado for reburial of Native American human remains in museum, university, state and Federal agency collections. The workgroup is comprised of the following: the Ute Mountain Ute Tribe of the Ute Reservation, Colorado; the Southern Ute Indian Tribe of the Southern Ute Indian Reservation, Colorado; the Colorado Commission of Indian Affairs; Colorado College; the Colorado State Department of Natural Resources; Colorado State University; the University of Denver; History Colorado; the University of Colorado; the Denver Museum of Nature and Science; the Bureau of Land Management in Colorado; the Forest Service, Rocky Mountain Region; and the National Park Service, Intermountain Region.

Ms. Landrum stated that the issue of lands for reburial has been identified as one of the most significant challenges to full implementation of NAGPRA in the Intermountain Region and across the country. Following the finalization of 43 C.F.R. 10.11, the reburial location issue will become even more critical because the primary reason Native American human remains are listed as culturally unidentifiable under NAGPRA is due to lack of information on geographic origin and other contextual information. Although reburials are not specifically addressed in NAGPRA, the NPS has the affirmative policy discretion to reinter human remains that come from sites within park boundaries of the same park at the request of, and in consultation with, repatriating Indian tribes. The Intermountain Region, NPS, has committed to collaborating with all of its partners – Indian tribes, museums, state and other Federal agencies – to openly discuss this topic and identify strategies to address this complex issue within the parameters of agency policy. Ms. Landrum stated that the workgroup has compiled a considerable amount of information related to this issue and would be happy to provide the Review Committee’s subcommittee on reburial lands with any materials that would be helpful. In addition, the Intermountain Region, NPS, would like to host a work session between members of the Review Committee’s subcommittee and the Colorado Lands Repatriation and Reinterment Workgroup in conjunction with the May 2013 Review Committee meeting in Denver, CO.

Ms. Worl thanked Ms. Landrum for her presentation, and stated that the Review Committee would like to participate in the work session.

Ms. Shannon Keller O’Loughlin Ms. Shannon Keller O’Loughlin, member of the Choctaw Nation of Oklahoma, stated she was both an independent contractor for the National NAGPRA Program and a private attorney. She provided this public comment in her role as private attorney. Ms. Keller O’Loughlin stated that the Association on American Indian Affairs Project on International Repatriation crafted an International Repatriation Resolution to be considered at the October 2012 National Congress of the American Indian (NCAI) meeting in Sacramento, CA. Ms. Keller O’Loughlin read NCAI Resolution #SAC-12-008, Support for International Repatriation, which outlines the need for international repatriation efforts, NCAI’s commitment to this effort, and recommendations from NCAI on how to address the issue. Ms. Worl thanked Ms. Keller O’Loughlin for her presentation, and commended this idea.

Ms. Bambi Kraus Ms. Bambi Kraus, National Association of Tribal Historic Preservation Officers (NATHPO), summarized a few areas of concern. First, Ms. Kraus asked the National NAGPRA Program to clearly identify the collections that were the subject of the CUI Database discussion that morning, in order for NAGPRA practitioners to be aware of the status of collections. Ms. Hutt stated that those would be identified with the notation entry approved by the Review Committee earlier in session.

Second, under another National NAGPRA Program database, Ms. Kraus asked why approximately 13,000 Native Americans in the National NAGPRA Program database for which cultural affiliation has been determined are not in published Notices of Inventory Completion. Ms. Hutt stated that the emphasis of the National NAGPRA Program has been to get all culturally affiliated individuals into notices. Ms. Hutt stated that information in the databases is important, as it highlights where work is moving through the process, in order to identify where additional training and attention is needed. As to timing of notice publication, Ms. Hutt stated that museums may be undergoing additional consultation due to information received following inventory completion. Ms. Hutt stated that notice submission has increased by one hundred percent over the prior year, resulting in the publication of almost 200 notices per year. The overall number of culturally affiliated Native American human remains not yet published in notices will diminish as museums complete consultation work and the accuracy of the information in the Program database is verified.

Third, Ms. Kraus reaffirmed NATHPO’s support for a technical amendment to NAGPRA for the definition of ______NAGPRA REVIEW COMMITTEE MEETING MINUTES November 28-29, 2012, page 18

Native American. Ms. Kraus stated that the DOI, in a response to the U.S. Senate Committee on Indian Affairs, supported amending NAGPRA, and stated she would supply that finding to the Review Committee. Fourth, Ms. Kraus said she was asked to state for the record that the Western Apache group continues to be stymied by the National Museum of Natural History, Smithsonian Institution, for the return of six sacred objects and objects of cultural patrimony. Ms. Worl thanked Ms. Kraus for her comments.

Mr. Brian Howard Mr. Brian Howard, National Congress of American Indians (NCAI), was joined by Ms. Leslie Wheelock, Director of Economic Policy, NCAI. Mr. Howard stated that the NCAI is the oldest and largest organization representing the governments of American Indian and Alaska Native people. Mr. Howard stated that in its 2011 report to Congress, the Review Committee supported adding the words “or was” to the definition of Native American at 25 U.S.C. 3001 (9). NCAI supports including this language, but does not agree with the final statement in the recommendation, “This is a complex and contentious issue for which there is strongly felt support and opposition,” which undermines the support of Indian tribes for changing the definition of Native American. The definition change is supported by NCAI Resolution #TUL-05-029. Mr. Howard stated that the NCAI highly recommends that the Review Committee remove the aforementioned statement that was included in its 2011 report to Congress before submitting its 2012 report. Ms. Worl thanked Mr. Howard for his comments.

Ms. Pat Parker Ms. Pat Parker, National Park Service, introduced a new NPS website called “Connecting with Native Americans.” The website will connect Indian tribes, and those working with Indian tribes, with the various program in the NPS. The website will contain “Tribal Quick Guides,” which are program descriptions geared toward tribal people, including one on traditional cultural properties.

Report and Discussion: Burial Ground Subcommittee Report and Discussion of Recommendations

Burial ground subcommittee members – Mr. Hemenway, Mr. Barker, and Mr. Wright, Jr. – presented the matter. Mr. Hemenway stated that the preliminary report was based on presentations to the Review Committee highlighting the difficulty of trying to secure land for reburials, mainly for human remains excavated from Federal lands. Key issues raised by Indian tribes centered on trying to find an appropriate location at, or close to, the original site while addressing different tribal protocols. The subcommittee would like to consider the idea of an area of land being designated for reburial, while considering best practices described to date to develop a method that is widely applicable. Mr. Wright, Jr., stated that the BLM has an instruction memorandum on reburial on BLM lands and considers issues on a case-by-case basis. Mr. Barker stated that multiple agencies have policies that allow affirmative, positive discretion on the part of managers to rebury human remains and funerary objects removed from the individual system unit, but there is a need to develop policies that would allow that same discretion for human remains and cultural objects that may come from an area outside of the affected unit. Ms. Worl emphasized the need for a national standard, due to changes over time both in management personnel and policies. Mr. Wright, Jr., agreed and stressed the need for confidentiality and protection of sites.

Ms. Hutt stated that the National NAGPRA Program could compile a compendium of current reburial policies of land-managing Federal agencies, which may help identify potential locations, should the Review Committee ultimately recommend to Congress the enactment of legislation establishing a reburial location. Ms. Hutt stated that asking for Congress to oversee the policies of individual agencies was not a viable solution. Ms. Worl stated that, in her opinion, this issue will require a legislative fix; one solution would be the delegation of a central agency to oversee reburials in consultation with Indian tribes. Ms. Worl stated that she would recommend a full analysis of current policies. Mr. Wright, Jr., stated he would first like to see an administrative approach, within the authority of each of the Federal Departments. Mr. Wright, Jr., stated that a fundamental concept needs to be built into the policy that acknowledges tribal reburial on Federal lands, while demonstrating dignity and respect toward the burials. Mr. Barker stated that completing the study of current policies would help to determine the best approach to develop and implement a reburial policy. Mr. Hemenway stressed the importance of addressing this issue in a timely manner, as many Indian tribes are already dealing with the issue of lack of lands for reburial.

Review Committee Motion Mr. Hemenway made a motion that the Review Committee request that the National NAGPRA Program compile all ______NAGPRA REVIEW COMMITTEE MEETING MINUTES November 28-29, 2012, page 19

the Federal agency policies regarding reburials on Federal lands. Mr. Barker seconded the motion. Mr. Wright, Jr., recommended that an analysis of the authority of each Federal agency be included in the compilation. With no objections, the motion was amended to include the recommendation of Mr. Wright, Jr. The motion passed by unanimous vote. Ms. Worl confirmed that the Review Committee’s subcommittee was interested in accepting the invitation from the Intermountain Region, NPS, to participate in a reburial lands work group session in conjunction with the May 2013 Review Committee meeting in Denver, CO.

Action Item: Discussion and Review of the Review Committee’s Dispute Procedures and Findings Procedures

Review Committee procedures subcommittee members – Ms. Atalay, Mr. Hemenway, and Ms. Worl – presented the matter. Ms. Atalay summarized the key points and revisions made to the Review Committee’s Dispute Procedures and Findings Procedures. Ms. Atalay stated that clarifications were made to the practical aspects of the procedures, including how to submit the information and what documentation to include in the request. In addition, language was added to encourage resolution of issues before coming to the Review Committee. Ms. Atalay stated that the bulk of the changes were in the section on “Hearing a Dispute,” and included limiting the number of disputes heard by the Review Committee to one dispute per meeting day, recognition of cultural protocols, time limits for presentations, and the timing of submission of materials. Ms. Farm asked if the time parameters set forth in the procedures were sufficient for purposes of the National NAGPRA Program. Ms. Hutt stated that the parameters were initially developed by the Program and seemed to work well.

Ms. Hutt stated that, once the subcommittee’s draft is approved, the Review Committee would provide the draft procedures to the Designated Federal Official. The DFO and counsel would review and comment upon the procedures. Ms. Hutt clarified that the DFO and counsel can only act upon items that have been approved by the full Review Committee, and cannot act upon working documents from the subcommittee. Throughout this process, the original Review Committee Dispute Procedures have remained on the website, and parties are not precluded from bringing a dispute during this revision process.

Ms. Farm stated she would like to add language to the procedures that acknowledges cultural protocol but outlines the limitations of gifts to the Review Committee members set forth by FACA. Mr. Barker stated that under section IV. B. through E., all correspondence is between the DFO and the Review Committee Chair, while section I precludes contact between members of the Review Committee and outside parties once a dispute has been proposed. Mr. Barked asked that this be clarified to ensure that the Review Committee members would know when a dispute has been proposed.

Review Committee Motion Ms. Worl made a motion that the Review Committee approve the draft dispute procedures, forward them to the DFO for review and comment, that the procedures be posted on the website for public review and comment, and finally, that the DFO compile all comments and forward them to the subcommittee for action. Mr. Hemenway seconded the motion. Mr. Barker asked for a friendly amendment; that instead of approving the draft, the Review Committee approve forwarding the draft for comment. With no objections, the amendment was accepted. Ms. Atalay added an amendment to insert the following language, “As a reminder to the public, while the Committee understands that there may be cultural protocols involved in presentations, in accordance with FACA rules and ethical rules on gifting, the Committee is unable to receive gifts from any party.” Mr. Barker seconded the amendment. The amendment passed by unanimous vote. The amended motion passed by unanimous vote.

Discussion: Location of 49th Meeting, Fall 2013

The Review Committee received two invitations for the fall 2013 meeting. The first invitation was from a consortium of Federal agencies, Indian tribes and archeological associations to meet in La Crosse, WI. The second invitation was from the Saginaw Chippewa Indian Tribe of Michigan and the Ziibiwing Cultural Center, to meet in Mount Pleasant, MI. After consideration of past meeting locations, and in an effort to have fair geographical meeting location distribution, the Review Committee agreed to meet in Mount Pleasant, MI.

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Presentation: Progress Report – Peabody Museum of Archaeology and Ethnology, Harvard University

Ms. Patricia Capone, Associate Curator, Peabody Museum of Archaeology and Ethnology, Harvard University, was joined by Ms. Michelle Morgan, Associate Curator, and Ms. Sandra Dong, NAGPRA Coordinator. Ms. Capone stated that the Peabody Museum has committed resources and attention over the years in a good faith effort to implement NAGPRA and cultivate the respectful relationships necessary to this effort. The Peabody Museum is responsible for NAGPRA implementation for one of the largest and broadest collections subject to the Act. The Peabody Museum has completed requirements to enable repatriation of approximately 3,163 human remains and over 10,000 funerary objects, representing approximately 13 percent of the total number available nationally for repatriation. Of these collections, physical repatriation has been completed for 2,936 individual human remains, 3,886 funerary objects, 1 sacred object, 73 objects of cultural patrimony, and 22 objects that are both sacred objects and objects of cultural patrimony.

Ms. Capone stated that consultations with Native American Indian tribes take several forms, including: visits to the museum, correspondence, web consultation through the museum collections database online, and arrangements for physical repatriations. The Peabody Museum continues to use its collections website, with 37 web lists, as a means of presenting collections for NAGPRA consultations. Since the Review Committee’s May 2012 meeting, the Peabody Museum welcomed, or traveled to, four NAGPRA consultation visits, and continues to consult with numerous Indian tribes on possible sacred objects and objects of cultural patrimony. Physical transfers are anticipated in the current year.

The Peabody Museum began implementing 43 C.F.R. 10.11 (concerning the disposition of culturally unidentifiable human remains), which became effective in 2010, and allocated resources for new staff in partial response to the added requirements. In FY 2012, the Peabody Museum conducted consultations with 60 Indian tribes under this regulation, in addition to ongoing consultations under other NAGPRA regulations.

Ms. Capone stated that the Peabody Museum was concerned with several aspects of 43 C.F.R. 10.11, specifically that: There are poorly defined limits to discussions that must occur and the parties who must participate; The cost of conducting these large-scale and open-ended discussions is growing; and The time for implementing this process appears to have been underestimated.

Ms. Capone stated that these factors could contribute to an atmosphere of confusion and expense for Indian tribes and institutions. It is important that the process be well-structured and better defined in order to avoid a splintered approach to dispositions. Increases are warranted in the NAGPRA grants program and the grants program administration to support the additional requirements of this regulation. If substantive changes to any NAGPRA regulations are under consideration, the Peabody Museum hopes that the museum’s current and past NAGPRA efforts will be taken into consideration and that the museum will be provided an opportunity to comment and participate.

Regarding the August 20, 2012 Federal Register notice on NAGPRA’s information collection, Ms. Capone stated that in the Museum’s experience, the activities referenced in the notice do not capture all compliance activities. The Peabody Museum’s September 19, 2012 comment explained that the time estimates and staff costs were not representative of the information collection costs to museums or Indian tribes, but are, in fact, substantially greater that the estimate. In addition, the cost of NAGPRA implementation should be considered more broadly than just information exchange, and should include consultation, curation agreements for collections prior to repatriation, and physical repatriations.

The Peabody Museum continues work to refine policies and procedures for sensitive collections, and to strive for improved approaches to expanding access by Native American communities. The Peabody Museum responds to frequent inquiries from students or other interested parties. The Peabody Museum is again partnering with the Harvard University’s Native American Program and local Native American communities to discuss the research on the Harvard Indian College of 1655 and the history of Native American education at Harvard. In addition, a project was developed featuring a visible workspace for collaborative conservation of watercraft from Alaska. Ms. Capone stated the staff at the Peabody Museum is grateful for the relationships that have been developed that have so broadly benefited the institution, and looks forward to new ways of understanding through the NAGPRA process. ______NAGPRA REVIEW COMMITTEE MEETING MINUTES November 28-29, 2012, page 21

Review Committee Questions and Discussion Mr. Barker asked for an estimate of how much the description of information collection underestimates the amount of time and effort involved. Ms. Capone stated that they came up with approximately 5,000 hours for a variety of tasks, and she would be happy to amend the electronic version of her presentation with that information. Ms. Worl thanked Ms. Capone for her presentation.

Action Item: Finalization of the Review Committee 2012 Report to Congress

Mr. Hemenway summarized the key points of the draft 2012 report to Congress. The Review Committee members discussed substantive changes as follows:

Recommendation 1: Amendments to 43 C.F.R. 10.11. Mr. Barker stated he agreed with the importance and timeliness of return, but he was concerned that the Review Committee was recommending a requirement for a deadline for disposition regardless of whether or not a request had been made. Mr. Barker recommended deleting this recommendation. Mr. Hemenway stated the recommendation was drafted in response to concerns expressed by both Indian tribes and museums to address the lack of consistency for dispositions under 43 C.F.R. 10.11. Mr. Barker stated that he was concerned that the Review Committee was recommending very specific actions to Congress, include specific timelines, which had not been discussed or debated by the current Review Committee members. Mr. Wright, Jr., stated that the recommendation includes an explanation that these discussions began in 2010, and to eliminate this recommendation would be not moving in the direction of the intent of the law. Ms. Farm stated she was not on the Review Committee when this issue was discussed and felt this issue needed further discussion and clarification as to what was being recommended. Ms. Farm stated she concurred with Mr. Barker’s recommendation to delete or table this recommendation.

Review Committee Motion Ms. Atalay made a motion that the recommendation be reworded to read, “The Review Committee recommends that 43 C.F.R. 10.11 be amended to include a deadline to have a Federal Register notice published under a disposition that occurs under 10.11.” Mr. Hemenway seconded the motion. Mr. Barker stated he was uncomfortable with the Review Committee offering amendments to legislation without having discussed the topic internally in a public setting, and asked that the discussion be placed on the agenda for consideration. Mr. Wright, Jr., asked for clarification from counsel on the legal implications of this recommendation. Ms. Mattix stated that, although Congress could decide to make a change to the statute, this recommendation would result in a change to the regulations, which would be done at the Department of the Interior level. Ms. Worl stated that this issue has been discussed previously by the Review Committee and has stood as a recommendation since 2010. Mr. Barker stated that the Review Committee members have changed since that discussion, the full text of the original recommendation had not been discussed to his knowledge, and at the time the recommendation was approved by a vote of four to zero. Ms. Worl called the question. The motion passed by majority vote, with two votes against (Mr. Barker and Ms. Farm).

Recommendation 2: Increasing Funding for National NAGPRA Program. Mr. Barker stated it appeared this recommendation was for an overall increase for the National NAGPRA Program and a separate allotment for funds to build capacity to implement NAGPRA in addition to the NAGPRA grants, and asked for clarification of how the second process would work. Mr. Hemenway stated he envisioned a separate program, along the lines of the THPO program, specifically designated for tribal NAGPRA. After discussing various options, and receiving clarifications of the limitations of the statute, the Review Committee agreed to separate the recommendation into two parts, with some minor editing.

Review Committee Motion Mr. Barker made a motion to adopt the first part of recommendation 2, “The National NAGPRA Program budget has not been significantly increased for some two decades. While much progress has been made, much remains to be done. One of the clear and often-remarked barriers to further and fast progress is a lack of adequate resources on the part of all parties concerned. We respectfully recommend increasing the National NAGPRA Program’s budget to $4.5 million annually, with direct allocations for NAGPRA grants to Indian tribes, Native Hawaiian organizations, and museums, and to support the administration of the Program as well as a civil penalties ______NAGPRA REVIEW COMMITTEE MEETING MINUTES November 28-29, 2012, page 22

investigator, or additional staff as needed. An increase in the amount of grant funds should be made available to museums and Indian tribes. Grant funds enable Indian tribes and museum to implement NAGPRA on a wide scale. Restricted budgets are a reality to both Indian tribes and museums. The ability to offer greater monetary assistance results in more museums coming into compliance, more Indian tribes having successful repatriations occur and overall greater implementation of the law. Museums and Indian tribes both expressed the monetary difficulties in implementing NAGPRA, which include consultations, retrieving remains and items. During FY 2012, $2.7 million in grants was requested while only $1.6 was awarded. The amount of funds for grants, recommended by the Review Committee, is 4.2 million dollars.” Ms. Farm seconded the motion. The motion passed by unanimous vote.

Review Committee Motion Ms. Atalay made a motion to adopt the second part of recommendation 2 as a separate recommendation in concept, to ask Congress to appropriate funds for capacity building, with the final wording to be drafted by the DFO and Ms. Farm. Ms. Farm seconded the motion. The motion passed by unanimous vote.

Recommendation 3: Allotment of Reburial Lands. Mr. Barker stated he was concerned with the idea that specific burial lands would be allotted, given the fact that the Review Committee has heard both about the valid need for land for reburial but also the need for confidentiality regarding the nature and location of reburials. Mr. Barker recommended waiting to move on this recommendation until the Review Committee has worked through this issue. The issue is currently being addressed by the Review Committee’s subcommittee, and the National NAGPRA Program has been tasked with gathering additional information. Mr. Hemenway stated that this is a very timely issue and the recommendation should stand. Mr. Hemenway stated he felt that the process of land allotment would take some time and effort, and hopefully the efforts of the subcommittee would coincide with the work on land allotment. Ms. Worl stated this has been an ongoing recommendation of the Review Committee for many years.

Review Committee Motion Mr. Wright, Jr., made a motion to approve recommendation 3. Mr. John seconded the motion. Ms. Atalay stated that while she agrees with the sentiment of the recommendation, which has been discussed at length in the “Barriers Encountered” section of the report, she would like to develop a more specific and effective recommendation following the work of the subcommittee. Ms. Worl called the question. The motion passed by majority vote, with three votes against (Ms. Atalay, Mr. Barker, and Ms. Farm).

Recommendation 4: Processing of Affiliated Remains.

Review Committee Motion Mr. Hemenway made a motion to approve recommendation 4. Mr. John seconded the motion. Ms. Atalay asked for clarification. Mr. Hemenway stated this was in response to the large number of individuals in Federal collections that have been published in a Federal Register notice but not yet repatriated. The recommendation is being offered to help spur the activity to complete the transfer and disposition of these individuals. Mr. Barker stated that the wording does not appear to offer any specific recommendation. After discussion, Ms. Atalay recommended alternate language, “Collections of remains in the control of federal agencies that have been published in notices that need to be repatriated and reburied. Thousands of individuals are waiting to be returned and reburied at the present moment. The Review Committee recommends that Congress consider implementing a timeline for the transfer of control of these remains to the appropriate tribes.” The motion passed by majority vote, with two votes against (Mr. Barker and Ms. Farm).

Recommendation 5: Study of Federal Agency Reburials.

Review Committee Motion Mr. Wright, Jr., made a motion to approve recommendation 5. Ms. Atalay seconded the motion. Mr. Barker stated that while he feels a study of successful programs should be done, this action was an administrative matter, not a recommendation to Congress. Mr. Barker suggested that the text be moved into the body of the report, informing Congress of the work of the Review Committee. The Review Committee agreed with this change.

Recommendation 6: International Repatriation.

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Review Committee Motion Mr. Hemenway made a motion to approve recommendation 6. Ms. Farm seconded the motion. After discussion of Congress’s powers in the area of foreign policy, Ms. Atalay made a wording suggestion, “There are many Native American human remains, cultural items, and sacred objects that are housed outside of the United States. The Review Committee recommends that Congress consider how it might facilitate international repatriation.” The motion passed by majority vote, with one abstention (Mr. Barker).

Recommendation 7: Changing the Definition of Native American. Mr. Wright, Jr., stated that in 2010, the Review Committee recommended that Congress amend the definition of Native American to include “or was,” and then in 2011, the Review Committee recommended that Congress consider amending the definition of Native American. Mr. Wright, Jr., stated that difference clearly changed the complexion of the Review Committee’s efforts to facilitate repatriation.

Review Committee Motion Mr. Wright, Jr., made a motion to approve recommendation 7, “The Review Committee recommends strongly that Congress consider amending the Act by changing the definition of "Native American" at 25 U.S.C. 3001 (9) by adding the words "or was" so that it reads: "'Native American' means of, or relating to, a tribe, people, or culture that is, or was, indigenous to the United States." Mr. Hemenway seconded the motion. Ms. Atalay proposed adding a brief statement indicating the support of the NCAI, NATHPO, and other institutions on this recommendation. Ms. Worl stated that, with no objections, the language will be included.

Mr. Barker stated that in the absence of 43 C.F.R. 10.11, he supported the redefinition. Under the current version of 43 C.F.R. 10.11, though, he could not support the redefinition or the Review Committee’s submission of the recommendation to Congress, either strong or otherwise, since it is not the view of the Review Committee as a whole. Mr. Barker stated that Mr. Wright, Jr., was correct that in 2011, the Review Committee changed its recommendation to ask that Congress consider holding hearings on this issue, specifically noting that it was a divisive issue. Ms. Worl suggested removing the word “strongly” from the recommendation. With no objection, the word “strongly” was removed.

Upon Ms. Farm’s request, Mr. Barker summarized his rationale for his position. Mr. Barker stated his belief that human remains might be culturally unidentifiable for a number of reasons, and that treating them all the same does a disservice both to the human remains and the descendant communities. The moral force and intent of NAGPRA was very simple and unambiguous – to allow descendant communities to reclaim ancestral human remains. Mr. Barker stated that 43 C.F.R. 10.11 changes that intent by allowing the disposition of human remains to groups who have no cultural affiliation with the human remains. This change in NAGPRA runs contrary to the law, is misguided, and may have significant implications to areas which have not yet been fully considered, including the issue of sovereignty.

Ms. Worl stated that her understanding is the process to claim the human remains would not change or disappear. Claims would need to be reviewed and meet the standards of the law. Ms. Worl called the question. The motion passed by majority vote, with one vote against (Mr. Barker).

Carryover Recommendations Ms. Farm stated that the carryover recommendations were up for discussion concerning inclusion in the report. Mr. Wright, Jr., stated that under carryover recommendation 6 he would like to suggest that the Review Committee recommend that the law mandate the transfer of associated funerary objects together with culturally unidentifiable.

Recommendation 8 After discussion that the carryover recommendations should proceed as written, the Review Committee agreed to address this issue by adding recommendation 8 to incorporate the revision proposed by Mr. Wright, Jr.

Review Committee Motion Mr. Wright, Jr., made a motion to approve recommendation 8, “The Review Committee recommends that 43 C.F.R. 10.11 mandate the return of associated funerary objects with the human remains.” Mr. John seconded the motion. Mr. Barker stated a friendly amendment that “Congress amend the Act to allow 43 C.F.R. 10.11 to mandate the return of associated funerary objects with the human remains.” The motion passed by majority vote, with two votes against (Mr. Barker and Ms. Farm).

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Review Committee Motion Ms. Atalay made a motion to include the remaining carryover recommendations from the 2011 report to Congress in the 2012 report to Congress. Ms. Farm seconded the motion. The motion passed by unanimous vote.

Process to Finalize the 2012 Report to Congress After consulting with the DFO and counsel on the proper process to follow regarding finalization of this report, the Review Committee agreed to hold a teleconference on January 10, 2013, for final discussion and approval of the report. Upon the request of the Review Committee, Ms. Hutt agreed to provide an Executive Summary for the report, as well as to edit the report for technical accuracy, without making any substantive changes.

Comments – Mr. Alexander Barker

Mr. Barker summarized several action items resulting from the meeting. In the 2013 National NAGPRA report, include a breakdown of the status of civil penalties, with a clear explanation of number of allegations and number of counts of failure to comply. As a follow-up to the CUI database discussion regarding the entries that will have the default wording, Mr. Barker requested that National NAGPRA Program provide the Review Committee with some copies of the actual reports and a determination of whether or not the human remains can be affiliated, in order to identify the problems and steps necessary to bring these institutions into compliance. In the 2013 National NAGPRA report, streamline the reporting format. The current report lists the outstanding CUI and CA in two columns but reports the repatriated CUI and CA as one number. Mr. Barker requested that the repatriated CUI and CA numbers be separated for reporting purposes. The National NAGPRA Program will compile information on current policies and authorities for reburial of human remains on Federal land by each Federal agency.

Public Comment – November 29, 2013

Ms. Semana Thompson Ms. Semana Thompson, Cultural Resource Specialist, Tribal Historic Preservation Office, Gila River Indian Community, commented on the consultation process between the Gila River Indian Community and the Peabody Museum of Archaeology and Ethnology, Harvard University. For this consultation, the Gila River Indian Community consulted on behalf of the Four Southern Tribes, which consist of the Gila River Indian Community, the Salt River Pima-Maricopa Indian Community, the Ak-Chin Indian Community and the Tohono O’odham Nation. The four tribes, while separated by physical and political boundaries, are all part of the O’odham cultural group. Ms. Thompson summarized the consultation process, which began in 2011, regarding Hohokam human remains determined to be culturally unidentifiable in 2000. The human remains represent a minimum number of 138 individuals and approximately 2,997 funerary objects removed from Los Muertos, a Hohokam archeological site in Maricopa County, AZ. Ms. Thompson stated that the Peabody Museum did not conduct adequate good faith consultation. In attempting to reach deadlines for inventory completion, the Peabody Museum set response deadlines for the Indian tribes that were impossible to meet, and subsequently categorized the items as culturally unidentifiable, stating that it was not possible to determine cultural affiliation for human remains and funerary objects from southern Arizona.

Ms. Thompson summarized the consultation process, including the Gila River Indian Community’s submission of a cultural affiliation document titled “The Four Southern Tribes and the Hohokam of the Phoenix Basin,” written in 2000, which provides lines of evidence to establish cultural affiliation between the O’odham and the Hohokam archeological culture. The document has been provided to museums and Federal agencies since 2000, and in every instance has supplied the necessary evidence for a determination that Hohokam human remains are culturally affiliated to the O’odham. The Peabody Museum determined that the cultural affiliation documents were insufficient and outdated. The Gila River Indian Community submitted letters and resolutions from the Four Southern Tribes requesting that the Peabody Museum reassess cultural affiliation, and identifying concern over the potential study of culturally unidentifiable human remains. The Gila River Indian Community submitted a grant application for this collection, but was denied a grant because the Peabody Museum had also applied for, and was

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awarded, a consultation/documentation grant for the same collection, despite the fact that the scope of work for each grant application was markedly different and this conflict was not noted in the pre-review process. Ms. Thompson stated they were working with the Peabody Museum to amend the museum’s grant and ensure that the consultation process moves forward.

Ms. Thompson stated that the Four Southern Tribes will not pursue disposition under 43 C.F.R. 10.11, because they are certain these individuals are culturally affiliated and it would be wrong to claim them by stating that they are culturally unidentifiable. Ms. Thompson provided a written copy of her full presentation, which she had been asked to summarize due to its length.

Review Committee Questions and Discussion Ms. Worl thanked Ms. Thompson for her presentation, and asked that the Review Committee members and the DFO review the issues raised.

Ms. Atalay and Mr. Barker asked that clear guidelines be developed for public comment, in order to allow commenters sufficient time and to ensure that public comment is not used to present dispute issues. Ms. Hutt stated that, in contrast to presentations, public comments are often extemporaneous and their exact nature is unknowable ahead of time. Time during the public comment sessions is controlled to ensure all interested parties have a chance to speak. Ms. Hutt stated that prior to meetings, when the agenda is being developed, parties can request that time be scheduled on the agenda for a presentation.

Mr. Shane Anton/Ms. Angela Garcia-Lewis Mr. Shane Anton, Cultural Preservation Program Manager, Salt River Pima-Maricopa Indian Community, stated that the concept of “culturally unidentifiable human remains” is inappropriate, upsetting and offensive. Per its cultural protocol, the Salt River Pima-Maricopa Indian Community will not receive or claim any human remains that are identified as “culturally unidentifiable.” Mr. Anton asked for clarification of the standard on preponderance of evidence. Is it 51 percent of what is provided by a tribe or 51 percent of what exists? Does the agency or institution say the tribe did not provide the 51 percent? Is the Federal agency or museum required to provide a rationale for denial?

Ms. Angela Garcia-Lewis, NAGPRA Coordinator, Salt River Pima-Maricopa Indian Community, stated that the Salt River Pima-Maricopa Indian Community wishes to reiterate the position of the Four Southern Tribes of Arizona that they will not repatriate any human remains or funerary objects under the regulation on culturally unidentifiable human remains in any cases where the human remains and funerary objects are known to be from a specific archeological material culture, such as the Hohokam, Salado, Sinagua, and Patayan, for the following reasons: To move forward under the CUI rule would create a negative legal precedent that states that Indian tribes cannot demonstrate a cultural relationship with the archeological material culture, which would be detrimental to tribal repatriation if the future brings the development of other laws governing repatriation. NAGPRA must develop and support guidelines that allow for the adequate and consistent consideration of nonscientific cultural information evidence, such as societal and personal relationships. To move forward under the CUI rule would indirectly support the expectation that Indian tribes must fulfill a greater level of evidence than is required by NAGPRA as it stands, such as to a level of clear and convincing evidence or evidence beyond a reasonable doubt. The absence of guidance for Indian tribes and the absence of procedural uniformity requirements for institutions creates inconsistencies in repatriation for Indian tribes. Ms. Garcia-Lewis stated that the same evidence sufficient to prove cultural affiliation with Hohokam archeological material culture in some instances has proven insufficient in others with identical circumstances and material culture. The inability to establish cultural affiliation for human remains and funerary objects currently categorized as CUI leaves these ancestral tribal members unprotected from research and testing.

Ms. Garcia-Lewis recommended that: The Review Committee explore ways to identify how previous precedent should affect current and future NAGPRA cases. Specifically, what weight does previous cultural affiliation have on current consultation? The National NAGPRA Program and Review Committee emphasize the fact that NAGPRA’s legal standing is satisfied if there is a greater than 50 percent chance the tribe in question is related to the earlier identified cultural group, and does not require a higher standard. This could be through development of examples of cases that represent the type and depth of information necessary to establish cultural ______NAGPRA REVIEW COMMITTEE MEETING MINUTES November 28-29, 2012, page 26

affiliation, to help identify a format to streamline the process. A process be developed to ensure that Indian tribes, agencies, museums and institutions are transparent and fair in their decision-making; that experts are mutually agreed upon by the museums and the Indian tribes; that those experts included in the decision-making process evaluate only evidence which falls within their area of expertise; and that the information being evaluated meet the current standards for academic scholarship within each discipline, so as not to allow documentation that is outdated or has been refuted. Research on human remains cease where a claim has been submitted and the requestor is awaiting a decision on the claim. The Salt River Pima-Maricopa Indian Community and Four Southern Tribes are opposed to particular types of research and are interested in consulting on research requests for remains that are culturally affiliated with their communities.

Ms. Garcia-Lewis agreed to provide a written copy of her presentation.

Review Committee Questions and Discussion Mr. Wright, Jr., thanked Mr. Anton and Ms. Garcia-Lewis for their comments. Mr. Wright, Jr., stated there is no standard of evidence for determining cultural affiliation, and that needs to be disclosed so Indian tribes can be prepared.

Ms. Worl stated that the Review Committee cannot always respond immediately to issues raised in public comments, and asked the DFO to review the public comments offered at the meeting and identify topic issues for future agenda items. Ms. Hutt stated she would send the Review Committee all supplemental materials, within which members could identify key topics for consideration.

Ms. Shannon Keller O’Loughlin Ms. Shannon Keller O’Loughlin, Choctaw Nation of Oklahoma, stated she was speaking as a legal advocate for her Indian nation clients. Ms. Keller O’Loughlin requested that the Review Committee consider adding a column on the CUI inventories database that shows whether an institution has consulted with named Indian tribes or not, with an explanation if no consultation has occurred. Ms. Keller O’Loughlin stated this would identify instances where an institution has made a determination that human remains are culturally unidentifiable without conducting consultation, as required by law. Ms. Keller O’Loughlin described an example of this issue.

Review Committee Questions and Discussion Mr. Wright, Jr., stated that lack of documented proof that a museum consulted with Indian tribes prior to a “culturally unidentifiable” determination was a very serious matter, and was akin to the matter regarding the CUI database that was discussed earlier. Ms. Hutt stated that lack of Indian tribes listed for consultation could mean that no Indian tribes were consulted or that museums were unable to identify Indian tribes with whom to consult. The National NAGPRA Program takes information that is submitted at face value. Mr. Barker confirmed that what Ms. Keller O’Loughlin was suggesting was a requirement to list the Indian tribes that were consulted as part of the reporting process. Ms. Keller O’Loughlin agreed. Ms. Atalay stated this was a serious concern that has been heard by the Review Committee on numerous occasions, and asked, as a practical matter, if it was possible to capture this information. Ms. Mattix stated that the regulations require that agency or museum officials must provide information about who is being consulted during the consultation process; specific information on consultation can be, but is not required to be, included in the inventory. Ms. Atalay stated that further complicating the matter is the lack of a standard for consultation.

Ms. Keller O’Loughlin stated that the Review Committee is the overseer of the CUI inventory, and she would like the inventory to show the institutions’ accountability; if an institution is asserting that they have consulted in a manner consistent with NAGPRA, they should state that and have that information included in the CUI inventory. Likewise, the CUI inventory should reflect if that information is not provided by the institution so that consultation can occur or Indian tribes can file a complaint for failure to comply. Ms. Worl stated that perhaps this issue could be addressed with some type of informal meeting of parties to brainstorm the possibilities. Ms. Hutt stated that the National NAGPRA Program could organize a webinar on this topic to allow discussion. Ms. Farm asked that the webinar occur prior to the May 2013 meeting.

Mr. Clayton Dumont Mr. Clayton Dumont, member of the Klamath Tribe of southern Oregon, professor of sociology, San Francisco State University, stated he was speaking as an individual. Mr. Dumont stated that his tribe experienced a very similar ______NAGPRA REVIEW COMMITTEE MEETING MINUTES November 28-29, 2012, page 27

situation as described by Ms. Keller O’Loughlin involving lack of tribal consultation. Mr. Dumont stated that while the situation had been ongoing for some time, his tribe’s culture and heritage officer was working with the museum and that, hopefully, the process will now move forward in a positive way. Ms. Keller O’Loughlin’s suggestion about an additional column on the database might have helped to alleviate this situation. Ms. Worl thanked Mr. Dumont for his comment.

Ms. Christine Abrams Ms. Christine Abrams, Acting Chair, Haudenosaunee Standing Committee on Burial Rules and Regulations, spoke on the issue of reburial lands. Ms. Abrams stated it was good to hear about the efforts to address this issue, as described by Ms. Christine Landrum, NPS. NAGPRA does not specifically address reburial, and the number of ancestral remains that this affects can run into the hundreds or thousands. The Haudenosaunee Standing Committee has a significant number of ancestors to bring home and may face land capacity issues. Ms. Abrams described specific cases currently being addressed by the Haudenosaunee Standing Committee representing hundreds of ancestors. The Haudenosaunee Standing Committee prefers for its ancestors to remain in situ if possible, or for reburial to occur as close as possible to their original location. Ms. Abrams stated that as the reburial subcommittee considers how Federal lands could be burial grounds, it should also consider how to create partnerships with the states. It is time to care for the ancestors and give them the protection, security and peace they deserve.

Closing Comments

Ms. Hutt stated that the terms of Ms. Atalay and Mr. Hemenway would end on January 13, 2013. Ms. Hutt recognized Ms. Atalay and Mr. Hemenway for their service on the Review Committee, and expressed her deepest thanks. Ms. Worl thanked Ms. Atalay and Mr. Hemenway for their hard work and significant contributions to the NAGPRA Review Committee.

Mr. Barker stated he was concerned that the Review Committee has some operational issues that need to be addressed to ensure that the Review Committee can be perceived as being efficient in its operations and fair and equitable in its proceedings. Mr. Barker recommended creating a subcommittee of the whole in order to discuss the operational issues in advance of the May 2013 meeting. Ms. Farm recommended that it be a perpetual subcommittee of the whole, in order to account for member changes. Ms. Mattix stated that arrangement would be fine, as long as the subcommittee reports back to the whole committee at a public meeting. Ms. Worl asked about the holdover provision for continued member service following term expiration and in the absence of a new appointment. Ms. Hutt stated that, following the policy of the current Administration, the holdover provision was not included in the latest Review Committee Charter. Ms. Worl stated she hoped the new appointments would be expeditious.

Ms. Worl stated that, despite the many years since the passage of NAGPRA, work still needs to be done to address new issues and refine old procedures. NAGPRA continues to demand the full focus of the Review Committee, the National NAGPRA Program and the public. The Review Committee strives to address interests of all of its constituents and to implement this law. Ms. Worl thanked the public for their interest and attendance, the National NAGPRA Program staff for their hard work, and the National Museum of the American Indian for hosting the meeting.

Traditional Closing Mr. Mervin Wright, Jr., Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation offered a traditional closing.

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Meeting Adjournment The meeting was adjourned at 2:57 p.m., Thursday, November 29, 2012, by Ms. Worl.

Certified –

March 1, 2013 Ms. Sherry Hutt, Date Manager, National NAGPRA Program Designated Federal Officer, Native American Graves Protection and Repatriation Review Committee

Approved on behalf of the Review Committee –

March 1, 2013 Ms. Rosita Worl Date Chair, Native American Graves Protection and Repatriation Review Committee

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