[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5865 Introduced in House (IH)]
<DOC>
118th CONGRESS
1st Session
H. R. 5865
To require the Secretary of the Army to establish a pilot program to
protect Native American burial sites, village sites, and cultural
resources discovered at Corps of Engineers civil works projects in the
Sacramento River watershed, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
October 2, 2023
Mr. LaMalfa (for himself and Mr. Garamendi) introduced the following
bill; which was referred to the Committee on Transportation and
Infrastructure
_______________________________________________________________________
A BILL
To require the Secretary of the Army to establish a pilot program to
protect Native American burial sites, village sites, and cultural
resources discovered at Corps of Engineers civil works projects in the
Sacramento River watershed, 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. SACRAMENTO RIVER WATERSHED NATIVE AMERICAN SITE AND CULTURAL
RESOURCE PROTECTION PILOT PROGRAM.
(a) Establishment.--Not later than 180 days after the date of
enactment of this Act, the Secretary shall establish a pilot program in
accordance with this section to protect Native American burial sites,
village sites, and cultural resources identified or discovered at civil
works projects in the watershed of the Sacramento River and its
tributaries, including the American, Bear, Yuba, and Feather Rivers, in
the State of California.
(b) Reburial.--
(1) Reburial areas.--In carrying out the pilot program, the
Secretary shall, in consultation with and with the consent of
each affected Indian Tribe, identify, and, as applicable,
cooperate with appropriate Tribal, local, State, and Federal
Government 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
such property owner or owners, as applicable.
(2) Recovery and reburial standards.--
(A) Timing of recovery.--
(i) Requirements.--In carrying out the
pilot program, 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 of a burial site,
village site, or cultural resources
from the site of a covered civil works
project under the pilot program is
completed, pursuant to a written plan
or protocol, not later than 45 days
after the initiation of such recovery;
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.--In carrying out subsection (a), the
Secretary shall develop and issue written guidance for
recovery and reburial under the pilot program 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.--No Federal entity
may exercise the power of eminent domain to acquire any
property to be used for reburial under the pilot
program.
(3) Recovery and reburial.--
(A) Recovery and reburial by secretary.--In
carrying out the pilot program, the Secretary shall, at
Federal expense, in consultation with and with the
consent of each affected Indian Tribe, and 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 authorization.--
(i) In general.--Upon the request of an
affected Indian Tribe, the Secretary shall
authorize, pursuant to a memorandum of
agreement entered into under clause (ii), the
Indian Tribe to assume recovery and reburial
responsibilities under the pilot program of
cultural resources that have been rightfully
claimed by the affected Indian Tribe, and shall
reimburse the affected Indian Tribe for
reasonable 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 to authorize the necessary
recovery and reburial activities 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 to authorize the necessary
recovery and reburial activities 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, pursuant to the
terms outlined in paragraph (6).
(4) Tribal monitors.--
(A) In general.--In carrying out the pilot program,
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, during
the construction of any covered civil works project,
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, pursuant to the
terms outlined in paragraph (6).
(5) Identification and inventory.--In carrying out the
pilot program, 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 reasonable costs under
paragraph (3)(B) or actual expenses under paragraph (4),
subject to market-based pricing, 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.--
(1) In general.--Subject to paragraph (2), notwithstanding
any other provision of law, 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).
(2) Retention of necessary property interests.--In carrying
out paragraph (1), the Secretary shall retain any necessary
right-of-way, easement, or other property interest that the
Secretary determines to be necessary to carry out the
authorized purposes of any Corps of Engineers project related
to the conveyed land.
(d) Confidentiality of Information Provided.--
(1) In general.--In carrying out subsection (a), 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 under the pilot program.
(2) Nonpublic information.--The following information
provided to the Department of the Army by an Indian Tribe under
the pilot program shall be treated as confidential and
nonpublic information, to protect Native American burial sites,
village sites, and cultural resources, and their locations,
from unauthorized excavation, desecration, or vandalism:
(A) Information regarding the locations of burial
sites, village sites, and cultural resources, including
maps designating such locations.
(B) Information regarding cultural or traditional
practices related to such sites or resources.
(e) Avoidance of Duplication.--In carrying out the pilot program,
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.
(f) Applicability.--
(1) In general.--Section 208 of the Water Resources
Development Act of 2000 (33 U.S.C. 2338) shall not apply to a
covered civil works project during the period during which the
Secretary is carrying out the pilot program.
(2) Existing contracts.--Nothing in this section shall
affect any contract relating to a covered civil works project
entered into by the Secretary of the Army before the date of
enactment of this Act.
(g) Period.--The Secretary shall carry out the pilot program until
the date that is 4 years after the date on which the pilot program is
established.
(h) 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 that is--
(A) located in the watershed of the Sacramento
River and its tributaries, including the American,
Bear, Yuba, and Feather Rivers, within the State of
California;
(B) being constructed, reconstructed, or repaired,
or operated and maintained, using Federal funds; and
(C) 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 102 of the Federally
Recognized Indian Tribe List Act of 1994 (25 U.S.C. 5130).
(8) Pilot program.--The term ``pilot program'' means the
pilot program established under this section.
(9) 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 of California; 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 that has the
closest cultural affiliation with the
cultural resources; or
(II) 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 item (aa), the
Indian Tribe that has the
strongest demonstrated
relationship with such cultural
resources.
(10) Secretary.--The term ``Secretary'' means the Secretary
of the Army, acting through the Chief of Engineers.
(11) 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.
<all>