[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6716 Introduced in House (IH)]
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117th CONGRESS
2d Session
H. R. 6716
To amend the Water Resources Development Act of 2000 to protect Native
American burial sites, village sites, and cultural resources discovered
at civil works projects of the Corps of Engineers, and for other
purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
February 11, 2022
Mr. LaMalfa (for himself and Mr. Garamendi) introduced the following
bill; which was referred to the Committee on Transportation and
Infrastructure
_______________________________________________________________________
A BILL
To amend the Water Resources Development Act of 2000 to protect Native
American burial sites, village sites, and cultural resources discovered
at civil works projects of the Corps of Engineers, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Native American Burial Sites and
Cultural Resources Protection Act''.
SEC. 2. REBURIAL AND CONVEYANCE AUTHORITY.
(a) Definitions.--Section 208(a) of the Water Resources Development
Act of 2000 (33 U.S.C. 2338(a)) is amended to read as follows:
``(a) Definitions.--In this section:
``(1) Affected indian tribe.--The term `affected Indian
Tribe' means any Indian Tribe that attaches religious or other
significance to any burial site, village site, or cultural
resources identified or discovered at a covered civil works
project.
``(2) Burial site.--The term `burial site' means any
natural or prepared physical location, whether originally
below, on, or above the surface of the earth, where Native
American cultural resources are present as a result of a death
rite or ceremony of a culture.
``(3) Covered civil works project.--The term `covered civil
works project' means a civil works project--
``(A) that is being carried out, or operated and
maintained, using Federal funds; and
``(B) that is owned, authorized, permitted, carried
out, or operated and maintained by the Department of
the Army, including a project carried out by a non-
Federal interest under section 204 of the Water
Resources Development Act of 1986 (33 U.S.C. 2232) or
section 1043 of the Water Resources Reform and
Development Act of 2014 (33 U.S.C. 2201 note).
``(4) Cultural resources.--The term `cultural resources'
means--
``(A) human remains; or
``(B) funerary objects or other ceremonial objects.
``(5) Funerary objects.--The term `funerary objects' means
items that are associated with the death rite or ceremony of a
culture.
``(6) Human remains.--The term `human remains' means the
physical remains of a human body, including such remains that
have been cremated and that may be in any state of
decomposition or skeletal completeness (including ashes or
small bone fragments).
``(7) Indian tribe.--The term `Indian Tribe' has the
meaning given that term in section 4(e) of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 5304(e)).
``(8) Rightfully claimed.--The term `rightfully claimed'
means claimed by--
``(A) with respect to cultural resources identified
or discovered on Federal or Tribal lands at the site of
a covered civil works project--
``(i) the person or entity with ownership
or control of the cultural resources under
section 3 of the Native American Graves
Protection and Repatriation Act (25 U.S.C.
3002); or
``(ii) with respect to cultural resources
not subject to such Act, the appropriate person
or entity determined in accordance with the
priority order established by such section; and
``(B) with respect to cultural resources identified
or discovered on other lands at the site of a covered
civil works project--
``(i) in the case of Native American human
remains and funerary objects associated with
such remains, the lineal descendants of the
Native American, as determined in accordance
with the laws of the State in which the site is
located; or
``(ii) in any case in which such lineal
descendants cannot be ascertained, and in the
case of other funerary objects or other
ceremonial objects--
``(I) the Indian Tribe with the
highest priority under the priority
order established by the laws of the
State in which the site is located; or
``(II) if the State in which the
site is located has not so established
a priority order--
``(aa) the Indian Tribe
that has the closest cultural
affiliation with the cultural
resources; or
``(bb) if the cultural
affiliation of the cultural
resources cannot be reasonably
ascertained--
``(AA) the Indian
Tribe that is
recognized as
aboriginally occupying
the area in which the
cultural resources were
identified or
discovered; or
``(BB) if it can be
shown by a
preponderance of the
evidence that a
different Indian Tribe
has a stronger cultural
relationship with the
cultural resources than
the Indian Tribe
specified in subitem
(AA), the Indian Tribe
that has the strongest
demonstrated
relationship with such
cultural resources.
``(9) Village site.--The term `village site' means any
natural or prepared physical location, whether below, on, or
above the surface of the earth, where a Native American village
has been present.''.
(b) Recovery and Reburial Requirements.--Section 208(b) of the
Water Resources Development Act of 2000 (33 U.S.C. 2338(b)) is amended
to read as follows:
``(b) Reburial.--
``(1) Reburial areas.--In consultation with and with the
consent of each affected Indian Tribe, the Secretary shall
identify, and, as applicable, cooperate with appropriate
property owners to set aside, areas that may be used for the
reburial of Native American human remains and funerary objects
that--
``(A) have been identified or discovered at the
site of a covered civil works project;
``(B) have been rightfully claimed by any affected
Indian Tribe; and
``(C) can be reburied in such areas in a manner
secure from future disturbances, with the consent of
the property owner or owners, as applicable.
``(2) Recovery and reburial standards.--
``(A) Timing of recovery.--
``(i) Requirements.--The Secretary shall
work in good faith with each affected Indian
Tribe, and each owner of property affected by
the recovery process, to ensure that--
``(I) the recovery from the site of
a covered civil works project of Native
American cultural resources under this
section is completed, pursuant to a
written plan or protocol, not later
than 45 days after the initiation of
recovery from the site; and
``(II) with respect to a burial
site, village site, or cultural
resources identified at the site of a
covered civil works project before
construction of the covered civil works
project commences, such recovery is
completed before such construction
commences on the portion of the covered
civil works project affected by the
recovery process.
``(ii) Alternative timetable.--
Notwithstanding the deadlines established by
clause (i), the Secretary, each relevant non-
Federal interest for the covered civil works
project, each affected Indian Tribe, and each
owner of property affected by the recovery
process may negotiate and agree to an
alternative timetable for recovery other than
that required by such clause, based on the
circumstances of the applicable covered civil
works project.
``(B) Guidance.--Not later than 180 days after the
date of enactment of the Native American Burial Sites
and Cultural Resources Protection Act, the Secretary
shall develop and issue written guidance for recovery
and reburial under this section that meets or exceeds
the recovery and reburial standards in policy
statements and guidance issued by the Advisory Council
on Historic Preservation.
``(C) Eminent domain prohibition.--The Secretary
may not exercise the power of eminent domain to acquire
any property to be used for reburial under this
section.
``(3) Recovery and reburial.--
``(A) Recovery and reburial by secretary.--In
consultation with and with the consent of each affected
Indian Tribe, the Secretary shall at Federal expense,
with appropriate dignity and in accordance with the
guidance developed under paragraph (2)--
``(i) recover any cultural resources
identified or discovered at the site of a
covered civil works project and rightfully
claimed by any affected Indian Tribe;
``(ii) rebury any human remains and
funerary objects so recovered at the applicable
areas identified and set aside under paragraph
(1); and
``(iii) repatriate any other cultural
resources so recovered to the affected Indian
Tribe that has rightfully claimed such cultural
resources.
``(B) Tribal delegation.--
``(i) In general.--Upon the request of an
affected Indian Tribe, the Secretary shall
delegate to the Indian Tribe recovery and
reburial responsibilities under this section of
cultural resources that have been rightfully
claimed by the affected Indian Tribe, and shall
reimburse the affected Indian Tribe for costs
directly related to such recovery and reburial.
``(ii) Memorandum of agreement.--In
carrying out clause (i)--
``(I) with respect to a burial
site, village site, or cultural
resources identified at a covered civil
works project before construction of
the project commences, the Secretary
shall, upon request by the affected
Indian Tribe, enter into a written
memorandum of agreement with the
affected Indian Tribe before such
construction commences; and
``(II) with respect to a burial
site, village site, or cultural
resources discovered at a covered civil
works project after construction of the
project commences, the Secretary shall,
upon request by the affected Indian
Tribe, enter into a written memorandum
of agreement with the affected Indian
Tribe not later than 45 days after such
discovery.
``(iii) Limitation.--Reimbursement under
clause (i) shall not exceed 1 percent of the
total cost of construction of the applicable
covered civil works project.
``(4) Tribal monitors.--
``(A) In general.--During the construction of any
covered civil works project, the Secretary may hire a
Tribal monitor or monitors, and shall allow any
affected Indian Tribe to hire a Tribal monitor or
monitors, at Federal expense, for each area of
construction, including for each burial site and
village site with respect to which Native American
cultural resources are being recovered for reburial.
``(B) Qualifications.--The Secretary or affected
Indian Tribe, as applicable, shall ensure that
preference in hiring Tribal monitors under this
paragraph is provided to qualified Native Americans,
including individuals who--
``(i) have a professional relationship with
the affected Indian Tribe; or
``(ii) possess knowledge of, and expertise
in, the customs of the affected Indian Tribe.
``(C) Limitation.--The Federal expense of Tribal
monitors hired under this paragraph shall not exceed 1
percent of the total cost of construction of the
applicable covered civil works project.
``(5) Identification and inventory.--The Secretary shall
accept identifications made by an affected Indian Tribe of
Native American burial sites and village sites at the site of a
covered civil works project, and include such identifications
in any inventory document for such project.
``(6) Timing of payments.--The Secretary shall enter into a
contract or other agreement to make a payment to an affected
Indian Tribe for reimbursement of costs under paragraph (3)(B)
or expenses under paragraph (4), which payment shall be made
not later than 90 days after the affected Indian Tribe submits
an invoice for such costs or expenses to the Secretary.''.
(c) Conveyance Authority.--Section 208(c)(1) of the Water Resources
Development Act of 2000 (33 U.S.C. 2338(c)(1)) is amended by striking
``the Secretary may convey to an Indian tribe for use as a cemetery an
area at a civil works project that is identified and set aside by the
Secretary under subsection (b)(1)'' and inserting ``the Secretary may
convey to an affected Indian Tribe for use as a cemetery or reburial
area any area that is located on land owned by the Department of the
Army and is identified and set aside under subsection (b)(1)''.
(d) Confidentiality; Avoidance of Duplication.--Section 208 of the
Water Resources Development Act of 2000 (33 U.S.C. 2338) is amended by
adding at the end the following:
``(d) Confidentiality of Information Provided.--
``(1) In general.--The Secretary shall develop and issue
written guidance regarding the confidentiality of information
provided to the Department of the Army by Indian Tribes in
connection with any covered civil works project.
``(2) Applicability of foia.--Information provided to the
Department of the Army by an Indian Tribe under this section
shall be exempt from public disclosure under section 552(b)(3)
of title 5, United States Code, to protect Native American
burial sites, village sites, and cultural resources, and their
locations, from unauthorized excavation, desecration, or
vandalism.
``(e) Avoidance of Duplication.--In carrying out this section, the
Secretary shall avoid, to the maximum extent practicable, duplication
of efforts relating to compliance with this section and any other
applicable provision of law.''.
(e) Applicability.--Any requirement of subsection (b) of section
208 of the Water Resources Development Act of 2000 resulting from the
amendments made by this section shall not affect any contract relating
to a covered civil works project (as defined in such section 208)
entered into by the Secretary of the Army before the date of enactment
of this Act.
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