118 HR 5865 IH: Native American Burial Sites and Cultural Resources Protection Act
U.S. House of Representatives
2023-10-02
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I
118th CONGRESS
1st Session
H. R. 5865
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.
1.

Short title
This Act may be cited as the “Native American Burial Sites and Cultural Resources Protection Act”.
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.