Procedures and Requirements When Human Remains are Discovered on Bureau of Land Management - California Lands
August 23, 2016
In Reply Refer to:
8100 (CA930) P
EMS TRANSMISSION: 8/23/2016
Information Bulletin No. CA-2016-012
To: All California Field Managers and District Managers
Attention: Field Office and District Office Cultural Staff
From: Deputy State Director, Resources
Subject: Procedures and Requirements When Human Remains are
Discovered on Bureau of Land Management - California Lands
This Information Bulletin (IB) summarizes the procedures, federal mandates and state requirements, when human remains are discovered on BLM-California (BLM) managed lands, providing Field Offices consolidated information to use as an accessible reference tool, as well as, a template for required documentation. The full process for both federal and non-federal lands is outlined for clarity and convenience, as many federally authorized projects also include non-federal lands.
Background
All human remains discovered are to be treated with respect and dignity. Federal law and regulations ([Archaeological Resources Protection Act (ARPA)16 USC 470 & 43 CFR 7], [Native American Graves Protection & Repatriation Act (NAGPRA) 25 USC 3001 & 43 CFR 10] and, [Public Lands, Interior 43 CFR 8365.1-7]), as well as, BLM manuals and California state law (California Health & Safety Code 7050.5) require all parties that discover human remains in California to follow a well-defined process, regardless if the remains are modern or archaeological. The BLM must be able to document the remains are located on BLM land, if they are not, BLM staff or managers may not be involved except to report a discovery to the county coroner. Human remains, museum collections and NAGPRA responsibilities are binding on the owner of the property at the time of discovery.
Discovery
Any BLM staff or manager who knows that human remains have been discovered on BLM managed lands shall provide notification of the discovery to his or her Field Manager and the State and Field Office Archaeologist as soon as possible. Upon discovery, the Field Office Manager and/or Cultural Resources Staff shall ensure the following occurs:
• Cease activity. When the discovery occurs in connection with an on-going activity on
BLM lands any activity within a minimum of 200 feet of the human remains shall stop
and a reasonable effort shall be made to protect them from further disturbance.
• Stabilize. Secure and protect discovered human remains by stabilizing or covering them.
• Contact County Coroner. The County Coroner’s Office of the county where the human
remains are located must be notified at the earliest opportunity. The Coroner has two
working days to examine the remains after notification. The Coroner will determine if
the remains are archaeological/historic or of modern origin and if there are any criminal
or jurisdictional questions to be answered.
1. Modern remains. If the Coroner determines that the remains are of modern
origin, the appropriate law enforcement officials will be called by the Coroner.
Work will not resume until law enforcement has released the area.
2. Archaeological or historic remains on non-federal property. If the remains are
located on California State, County, City or privately owned lands, and the
Coroner determines they are of archaeological or historic origin, the Coroner will
make recommendations concerning the remains. If the Coroner believes the
remains to be Native American he/she shall contact the California Native
American Heritage Commission (NAHC) within 24 hours. The NAHC will
notify the person it believes to be the most likely descendant (MLD) of the
remains. The MLD has 48 hours to make recommendations for disposition. If the
descendant does not make recommendations within 48 hours, the land owner shall
reinter the remains in an area secure from disturbance. If the land owner does not
accept the MLD’s recommendations, the owner or MLD may request mediation
by NAHC. The BLM is not part of this process.
3. Archaeological or historic remains on federal property. If the Coroner's Office
determines the remains on federal property are of archaeological or historic
origin, the State of California legal requirements are completed and the NAHC is
not contacted nor do they have any role in materials from federal lands. The
materials are, by definition, federal archaeological resources, and the appropriate
federal laws apply. The Field Office Archaeologist will initiate the proper
procedures under ARPA and/or NAGPRA to determine the disposition of the
materials. The remains will be analyzed to determine their ethnic origin. If the
remains are determined to be Native American, the steps, as outlined in
NAGPRA, 43 CFR 10.6 (Inadvertent discoveries), shall be followed.
• Contact BLM law enforcement. It is important that the suspected human remains, and
area surrounding them, be secured and the proper law enforcement authorities called as
soon as possible to the scene in case a crime scene exists.
• Contact California NAGPRA Program Director. After the County Coroner and BLM
Law Enforcement has been notified, contact the CA-BLM NAGPRA Program Director,
as they will assist the Field Office through the NAGPRA process should the remains be
Native American.
Native American Remains on BLM-California Lands
If the remains can be documented as being located on BLM-CA lands and are determined to be Native American, the following procedures are mandated by NAGPRA. Tribes should be contacted in a timely manner but should only be contacted after it is reasonably ascertained the remains are Native American.
• Tribal Notification. Should a determination be made the remains are Native American,
as soon as possible, but no later than 3 days following this determination, Tribal
notification shall be made by telephone with following written confirmation to:
1. Any known lineal descendant
2. The federally recognized Tribe(s) likely to be culturally affiliated with the
inadvertently discovered human remains and/or NAGPRA items,
3. The federally recognized Tribe(s) which aboriginally occupied the area, and
4. Any other federally recognized Tribe that is reasonably known to have a
cultural relationship to the human remains and/or NAGPRA items.
Tribal notification shall include pertinent information as to the types of human remains
and/or NAGPRA items discovered, their condition, and the circumstances of their discovery.
The written notification shall propose a time and place for a meeting or consultation. When
written confirmation is provided by a delivery service or certified mail, the signature proof of
delivery or a US Post Office return receipt should be obtained as confirmation of the receipt
of the written notification by the Tribal official.
• Initiate Formal Tribal Consultation. During Tribal notification, the Field Office
Manager shall invite the potentially affiliated federally recognized Tribe(s) to consult on
a government-to-government basis. The purpose of the consultation is to discuss the
proposed treatment of the human remains and other cultural items pending disposition
and to aid the BLM in determining who is entitled to custody of the human remains
and/or other cultural items under NAGPRA so that the disposition process can be
completed.
1. The BLM FO shall provide to the consulted federally recognized Tribes in
writing:
a. A list of all known lineal descendants and Indian Tribes that are being,
or have been, consulted; and
b. An indication that additional documentation, if any, will be provided on
request.
2. The BLM Field Manager shall request, as appropriate –
a. The name and address of the Indian Tribal official who will act as the
Tribe’s representative in consultation;
b. The names and appropriate methods to contact lineal descendants, if
they exist;
c. Recommendations of how culturally sensitive consultation should be
conducted; and
d. Information about the kinds of cultural items that are considered to be
unassociated funerary objects, sacred objects, or objects of cultural
patrimony.
• NAGPRA Plan of Action. After consultation, the BLM Field Office Manager shall
prepare, approve, and sign a written NAGPRA Plan of Action. The Plan of Action shall
document the kinds of objects to be considered as cultural items; the planned treatment,
care, and handling, including traditional treatment, of human remains and other cultural
items; the planned archeological recording of the human remains and other cultural items;
the kinds of analysis planned for each kind of object; and the nature of reports to be
prepared. The written NAGPRA Plan of Action shall also include –
1. The specific information used to determine custody of the human remains and
other NAGPRA items; and
2. The planned disposition of the human remains and other NAGPRA items.
Custody shall be determined in accordance with 25 USC 3002 (a), “Priority of
Ownership,” and 43 CFR 10.6, “Priority of Custody.”
• Transfer of Custody Notice. BLM shall publish a Transfer of Custody Notice (Notice)
prior to final disposition of the materials. At least 37 days prior to transferring the human
remains and other NAGPRA items to the recognized affiliated Tribe claiming the
materials, the BLM State Office NAGPRA Program Director shall draft, in coordination
with the Field Office Manager, a Notice. The Field Office will publish the Notice which
shall:
1. Be published two times (at least a week apart) in a newspaper of general
circulation in the area in which the human remains and other NAGPRA items
were discovered;
2. Provide information as to the nature and affiliation of the human remains and
NAGPRA items; and,
3. Solicit further claims to custody.
The BLM Field Office Manager shall send a copy of the final published notice and
information regarding when and where it was published to the BLM State Office
NAGPRA Program Director.
• Excavation. If the human remains and/or NAGPRA items are to be excavated and
removed from the public lands, pursuant to the provisions of 43 CFR §10.3(c) of the Act,
the Field Office manager shall follow the provisions in BLM Handbook 8120(II)(C)(1)
and 8120(II)(C)(2), including publication of a newspaper notice pursuant to 43 CFR
§10.6, identifying the Tribe(s) that has been determined to be affiliated and to whom
ownership of the NAGPRA materials would accrue following their removal. If, in
consultation with the lineal descendants or federally recognized Tribes, the Field Office
Manager determines that excavation and removal from the public lands is not required,
the materials remain in the Federal Government's ownership and control.
• Repatriation. Repatriation is the formal transfer of Native American human remains
and/or NAGPRA items excavated or inadvertently discovered on Federal lands after
November 16, 1990, to lineal descendants or federally recognized Indian Tribes that have
been determined by BLM to be affiliated with the materials. Affiliated federally
recognized Tribes may choose not to claim the materials. If an affiliated federally
recognized Tribe chooses not to take the materials into tribal custody, that is claim the
material, it shall be made clear in writing that as long as the materials remain in the
custody of the BLM, they are considered archaeological resources and treated as such. If
there are competing claims among federally recognized affiliated Tribes, repatriation may
not take place until the Tribes are in agreement among themselves. In completing a
repatriation, the claimants formally, in writing, accept custody (ownership). Repatriation
should be documented and shall be consistent with 25 USC 3002 (a), “Priority of
Ownership,” and 43 CFR 10.6, “Priority of Custody.” Physical transfer may take place
30 days after the publication of the second Transfer of Custody Notice, as agreed upon by
the claimants and the BLM Field Office Manager.
• Claimant Takes Physical Custody. Prior to, or at the time of physical transfer of the
materials, an official of the claiming Tribe shall sign a Transfer of Custody form which
summarizes the; material being transferred, relinquishment by BLM of responsibility for
the material, and, Tribe’s assumption of responsibility for the materials. The affiliated
claimant may then take physical possession of the human remains and other NAGPRA
items. When requested, the BLM may provide temporary care until the claimant is able
to take physical custody.
• Resumption of activity. The activity that resulted in the discovery of human remains may
resume at any time after a written agreement is executed between BLM, lineal
descendants, and/or the federally recognized affiliated Indian Tribe(s) that adopts a
recovery plan for the excavation or removal of the human remains, funerary objects,
sacred objects, or objects of cultural patrimony following 43 CFR §10.3 (b)(1) of these
regulations. The disposition of all human remains and NAGPRA items shall be carried
out following 43 CFR §10.6.
Contact: For additional information or questions regarding this issue, please contact Dr. Stephanie Damadio, Senior Program Analyst, at sdamadio@blm.gov or (760) 668-8142.
Signed by:
Thomas Pogacnik
DSD, Natural Resources
Authenticated by:
Cynthia Diezel
Records Manager (Detailee)