Inadvertent Discovery of Native American Human Remains, Funerary Objects,
In Reply Refer To:
8150 (931) P
August 14, 2018
EMS TRANSMISSION: 08/15/2018
Instruction Memorandum No. ID-2018-015
Expires: 09/30/2021
To: Idaho Leadership Team
Attention: Cultural Heritage Program Specialists and Law Enforcement
From: State Director
Subject: Inadvertent Discovery of Native American Human Remains, Funerary Objects,
Sacred Objects and Objects of Cultural Patrimony
Program Area: Cultural Heritage Program
Purpose: This Instruction Memorandum (IM) provides guidance for implementation of the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) for inadvertent discoveries on Bureau of Land Management administered lands in Idaho (BLM ID).
Administrative or Mission Related: Mission Related.
Policy/Action: This IM provides direction for Managers, Law Enforcement, Archaeologists and field staff who, on occasion, will be required to address NAGPRA (25 U.S.C. 3001 et seq.) and the implementing regulations, 43 CFR Part 10 and in particular 43 CFR §§ 10.4, 10.5 and 10.6, which address inadvertent discoveries of human remains, funerary objects, sacred objects, and objects of cultural patrimony (herein after human remains and/or cultural items). Staff are instructed to treat inadvertently discovered human remains as Native American, implementing the provisions of NAGPRA as a matter of course under this BLM ID policy. In the very rare circumstance that the remains represent or are believed to represent a crime scene, implementation of NAGPRA procedures ensures appropriate treatment of the remains and a communication protocol to address the event. Managers are instructed to engage in discussions about this IM with your staff and Law Enforcement (LE) Officers.
Pursuant to NAGPRA (43 CFR § 10.2(g)(4)):
“Inadvertent discovery means the unanticipated encounter or detection of human remains, funerary objects, sacred objects, or objects of cultural patrimony found under or on the surface
of Federal or tribal lands pursuant to section 3 (d) of the Act.”
Procedures for Inadvertent Discovery of Human Remains on Federal Lands in priority order (all reference 43 CFR 10):
• Immediately cease activity in the area (§ 10.4(c)), secure and protect the location. Record the location, make a brief physical description of what was observed, and note the circumstances under which the discovery was made.
• Treat the scene as a NAGPRA case if no conclusive evidence of a crime scene is apparent (e.g., modern clothing or items such as jewelry, teeth fillings, etc.). Contact the Field Manager and/or the District Manager; if contact is made by telephone, follow-up in writing (43 CFR § 10.4(b)).
• Contact the BLM LE to assist in protecting the area and to investigate the scene. Take additional measures, to further secure and protect the inadvertently discovered human remains and/or cultural items (43 CFR § 10.4(c)). Do not bring undue attention to the location. If local or state law enforcement officers are involved, educate them about the BLM’s NAGPRA responsibilities. Removal of the remains should not occur unless there is obvious and conclusive proof of a recent burial or that state law has been violated. If removal is necessary, appropriate crime scene and/or archaeological professional collection techniques should be employed.
• The Field Manager or LE should contact and ensure a qualified archaeologist is summoned to the scene as soon as possible to evaluate the location and to make an initial assessment of the cultural affinity of the human remains. Human forensics experts at the Ada County coroner’s and other coroner’s offices, the Idaho State Historical Society State Archaeologist, Boise State University, Idaho State University and other colleges and universities with forensic anthropologists may be available to assist if needed (see Attachment: Procedures for Human Skeletal Discoveries in Idaho 2018).
• Contact the State Office NAGPRA Coordinator/Deputy Preservation Officer/Cultural Program Lead (IDSO) as soon as feasible, day of discovery if possible.
• Following § 10.4(d)(iii), as soon as possible, but no later than 3 working days, notify by telephone and follow-up in writing Indian tribes that are likely culturally affiliated with the human remains and/or cultural items, that aboriginally occupied the area as determined by the Indian Claims Commission or U.S. Court of Claims (https://www.nps.gov/nagpra/DOCUMENTS/ClaimsMAP.htm) or that are known to have a cultural relationship to the discovery. This notification must provide information about the human remains/cultural items discovered, their condition, and the circumstances of their discovery. This notification should also include an invitation to consult, and propose a date, time, and place for meetings to further consider the discovery, and any proposed treatment, evaluate if excavation or removal is appropriate, and inform subsequent disposition, in accordance with §10.4(d)(iii) and §10.5(b)(2). Mail a certified return receipt letter to ensure appropriate tracking and documentation.
• Once the scene is secured and the initial steps outlined above are taken, following the provisions of NAGPRA (§§ 10.4 and 10.5), continue with tribal consultation in order to help the Manager better identify affiliated Indian tribes, as appropriate, and identify traditional religious leaders who may be able to provide additional information, identify cultural items and help inform whether or not to excavate or remove the discovery pursuant to § 10.3.
• If the human remains and/or cultural items will not be excavated or removed, take any additional measures necessary to secure the site and document the discovery and location in the BLM cultural resources management records.
• If the human remains and /or cultural items will be excavated or removed, proceed as an “Intentional Excavation or Removal,” described below.
Intentional Removal and Excavation: If the human remains and/or cultural items will be excavated or removed, the BLM must follow the provisions of NAGPRA (25 U.S.C. 3002(c); 43 CFR §§ 10.3 and 10.5(e)), which require that such activity be conducted in accordance with the requirements of the Archaeological Resources Protection Act (ARPA) (16 U.S.C. 470aa et seq.) and the implementing regulations at 43 CFR 7.
The BLM must continue NAGPRA consultation to exchange information and help inform proposed treatment and disposition, which will help inform the Written Plan of Action, required by 43 CFR § 10.5(e). Note that under ARPA, 43 CFR § 7.7, the BLM must provide tribal notification, and follow-up with consultation as requested by the tribes, at least 30 days in advance of possible harm to, or destruction of, sites having religious or cultural importance. Because human remains and cultural items subject to NAGPRA often have religious of cultural importance, the BLM should align its consultation process under both ARPA and NAGPRA, and ensure no activity occurs for at least 30 days.
Following consultation, the BLM must prepare and implement a Written Plan of Action, as described in 43 CFR § 10.5(e) (see Attachment 2). All excavations and removal must be authorized pursuant to ARPA (43 CFR §§ 7.5, 7.6, 7.7, 7.8), must follow current professional archaeological excavation and data recovery standards, and be conducted in accordance with the Written Plan of Action. Following excavation or removal, and completion of the steps identified and described in the Written Plan of Action, the BLM will determine disposition, make public notice, and transfer custody, carefully following 43 CFR § 10.6.
Timeframe: This policy is effective immediately.
Background: The discovery of human remains is often a highly charged and emotional situation. The first response should always be to act professionally and respectfully, secure the area, protect the remains in-place and initiate the communication protocols outlined in this IM. Experience shows that only in rare cases will the discovery of human remains be related to a crime scene, so the discovery should be treated as a NAGPRA case unless unequivocal evidence proves otherwise. Many Idaho cases over the past several years (e.g., East Fork, Red Gulch, Muldoon Creek and Hot Creek) have been initially treated as potential crime scenes. Often the BLM has little control as remains are most often found by the public, removed from the location, and turned over to the local County Sheriff’s office. The sheriff will contact the BLM and coroner, conduct forensic analyses and generally desire to acquire a radiocarbon date to determine age. Under “Proprietary Jurisdiction” (Public Law 94-467 § 10; U.S.C. 18 § 112 note) state, county and local law enforcement have jurisdiction to enforce state laws on public lands.
Once removed for analyses, generally, it will require several months before a determination of Native American affinity is rendered and the human remains returned to the BLM for appropriate treatment under NAGPRA. The BLM management and law enforcement should work closely with state, county and local law enforcement to ensure human remains are treated appropriately with dignity and respect and with the understanding that in the large majority of cases, inadvertent discoveries will represent remains of Native Americans. In all circumstances, the first response should be to protect human remains in-situ until the appropriate level of evaluation of the site can take place by the BLM, LE and state and local experts. If removal is necessary, the remains will be held in a secure facility.
The BLM Idaho State Office has worked with the Ada County coroner’s office and Boise State University in offering training to county coroners and law enforcement officials on the proper treatment of human remains. The attached guidelines, “Proper Procedure for Inadvertent Human Skeletal Discoveries in the State of Idaho,” should be shared with LE and staff to facilitate proper treatment of human remains.
Manual/Handbook Sections Affected: This IM is consistent with existing guidance in the BLM Manual 1780 and Handbook H-1780-1, Tribal Relations. Guidance in the referenced Manual Section will be supplemented by the policy in this IM.
Coordination: This guidance has been coordinated with the Washington Office, Division of Cultural, Paleontological Resources and Tribal Consultation (WO-240).
Contact: Kirk Halford, Idaho Deputy Preservation Officer, NAGPRA Coordinator (208) 373-4043 or fhalford@blm.gov.
Boise District with Union: Management is reminded to notify and satisfy any bargaining requirements prior to implementation.
Signed by:
Megan M. Conry for
Peter J. Ditton
Acting State Director
Authenticated by:
Terrian Wells
Program Analyst
2 Attachments:
1 – Procedures for Inadvertent Human Skeletal Discoveries in the State of Idaho 2018 (35 pp)
2 – Written Plan of Action Template (2 pp)