Common use of Specific Authorities and Processes for Addressing Human Remains Clause in Contracts

Specific Authorities and Processes for Addressing Human Remains. If human remains, funerary objects, Native American sacred objects, or Native American objects of cultural patrimony are encountered during project field investigations or laboratory work or during construction activities, the USACE will comply with the provisions based on the nature of the land ownership at the time remains or objects are encountered, in accordance with Engineering Regulation 0000-0-000 (Policy & Guidance), Appendix C-4. 1. Federal Lands: If discovered/recovered from Federal lands, USACE shall concurrently implement processes defined in this Agreement, satisfying NHPA, as well as • ensuring consultation with appropriate Federally-recognized Tribes for any human remains, funerary objects, Native American sacred objects, or Native American objects of cultural patrimony (objects) as required by the Native American Xxxxxx Protection and Repatriation Act of 1990 (NAGPRA), as amended (25 U.S.C. §§ 3001-3014) and its implementing regulations (43 C.F.R. Part 10; and • ensuring the appropriate provisions of the Archaeological Resources Protection Act, 16 USC §§ 470aa et seq., are followed. a. For discoveries of human remains, burials, funerary objects, Native American sacred objects, or Native American objects of cultural patrimony, USACE will continue to consult with the SHPO of jurisdiction, claimant Federally-recognized Tribes, and other affected parties, as appropriate, whether they are Signatories to this Agreement or not, regarding additional measures to avoid and protect or mitigate the adverse effect of the Undertaking. These measures may include: i. Visits to the site by the SHPO of jurisdiction, claimant Federally- recognized Tribes, and other affected parties, as appropriate; ii. Formally evaluate the archaeological site for NRHP-eligibility; iii. Explore potential avoidance alternatives; iv. Develop and implement a mitigation plan in consultation and concurrence with the SHPO of jurisdiction, claimant Federally-recognized Tribes, and other affected parties, as appropriate, including procedures for disinterment and re-interment. b. Initial Determination of nature of discovered Human Remains when from Federal Lands (Native American or Other) i. USACE, in consultation with the SHPO of jurisdiction and claimant Federally- recognized Tribes, whether they are Signatories to this Agreement or not, and other affected parties, may consult with a qualified physical anthropologist, forensic scientist, or other experts as may be needed to examine and assess the discovery. Unless the remains were inadvertently removed, the evaluation will be conducted at the site of discovery. Other than for crime scene investigation, no excavation, examination, photographs, or analysis of Native American human remains or remains suspected of being Native American will be conducted or allowed by USACE archaeologists or any other professional without first consulting with the claimant Federally- recognized Tribes, whether they are Signatories to this Agreement or not. The consulting expert will be allowed to draw and measure the exposed remains and associated funerary objects. Drawings cannot be published in any form or shown as part of scholarly presentations without the written permission of the appropriate Tribes or next living descendant. ii. USACE, in consultation with the SHPO of jurisdiction, claimant Federally- Recognized Tribes, and other affected parties, as appropriate, whether they are Signatories to this Agreement or not, will have seven (7) days to determine if the skeletal remains are human, the degree to which they were disturbed, and if possible, using reasonable measures to assess their potential age, cultural affiliation, and identity, without any further disturbance. Upon making a determination or at the end of the seven (7) days, whichever comes first, USACE will notify the appropriate affected parties of its findings. This notification will include pertinent information as to kinds of human remains, funerary objects, Native American sacred objects, or Native American items of cultural patrimony discovered, their condition, and the circumstances of their inadvertent discovery. iii. If the remains are determined NOT to be Native American in origin, USACE will follow the principals outlined in the 2007 ACHP “Policy Statement Regarding Treatment Of Burial Sites, Human Remains and Funerary Objects” to respectfully treat the remains and determine proper disposition, disinterment, re-interment, and memorialization, as well as any Real Estate guidance at the time of the discovery. c. Initiating NAGPRA Consultation following Inadvertent Discoveries/Recovery of Human Remains from Federal Lands i. For the purposes of notification and consultation of an inadvertent discovery, USACE considers the Consulting Tribes, and Federally- recognized Tribes who have identified the County/Parish as an area of interest are likely to be cultural affiliated with inadvertently discovered NAGPRA items found on a specific Work Item. ii. Upon certification of an inadvertent discovery of NAGPRA items by the responsible federal official, the USACE shall notify the consulting Federally- recognized Tribes. This notification will be made via email and telephone call to the appropriate consulting Tribes’ Primary POC within twenty-four

Specific Authorities and Processes for Addressing Human Remains. If human remains, funerary objects, Native American sacred objects, or Native American objects of cultural patrimony are encountered during project field investigations or laboratory work or during construction activities, the USACE will comply with the provisions based on the nature of the land ownership at the time remains or objects are encountered, in accordance with Engineering Regulation 0000-0-000 (Policy & Guidance), Appendix C-4. 1. Federal Lands: If discovered/recovered from Federal lands, USACE shall concurrently implement processes defined in this Agreement, satisfying NHPA, as well as • ensuring consultation with appropriate Federally-recognized Tribes for any human remains, funerary objects, Native American sacred objects, or Native American objects of cultural patrimony (objects) as required by the Native American Xxxxxx Protection and Repatriation Act of 1990 (NAGPRA), as amended (25 U.S.C. §§ 3001-3014) and its implementing regulations (43 C.F.R. Part 10); and • ensuring the appropriate provisions of the Archaeological Resources Protection Act, 16 USC §§ 470aa et seq., are followed. a. For discoveries of human remains, burials, funerary objects, Native American sacred objects, or Native American objects of cultural patrimony, USACE will continue to consult with the SHPO of jurisdictionMS XXXX, claimant Federally-recognized Tribes, and other affected parties, as appropriate, whether they are Signatories to this Agreement or not, regarding additional measures to avoid and protect or mitigate the adverse effect of the Undertaking. These measures may include: i. Visits to the site by the SHPO of jurisdictionMS XXXX, claimant Federally- Federally-recognized Tribes, and other affected parties, as appropriate; ii. Formally evaluate the archaeological site for NRHP-eligibility; iii. Explore potential avoidance alternatives; iv. Develop and implement a mitigation plan in consultation and concurrence with the SHPO of jurisdictionMS XXXX, claimant Federally-recognized Tribes, and other affected parties, as appropriate, including procedures for disinterment and re-interment. b. Initial Determination of nature of discovered Human Remains when from Federal Lands (Native American or Other) i. USACE, in consultation with the SHPO of jurisdiction MS XXXX and claimant Federally- Federally-recognized Tribes, whether they are Signatories to this Agreement or not, and other affected parties, may consult with a qualified physical anthropologist, forensic scientist, or other experts as may be needed to examine and assess the discovery. Unless the remains were inadvertently removed, the evaluation will be conducted at the site of discovery. Other than for crime scene investigation, no excavation, examination, photographs, or analysis of Native American human remains or remains suspected of being Native American will be conducted or allowed by USACE archaeologists or any other professional without first consulting with the claimant Federally- Federally-recognized Tribes, whether they are Signatories to this Agreement or not. The consulting expert will be allowed to draw and measure the exposed remains and associated funerary objects. Drawings cannot be published in any form or shown as part of scholarly presentations without the written permission of the appropriate Tribes or next living descendant. ii. USACE, in consultation with the SHPO of jurisdictionMS XXXX, claimant Federally- Federally-Recognized Tribes, and other affected parties, as appropriate, whether they are Signatories to this Agreement or not, will have seven (7) days 7)-days to determine if the skeletal remains are human, the degree to which they were disturbed, and if possible, using reasonable measures to assess their potential age, cultural affiliation, and identity, without any further disturbance. Upon making a determination or at the end of the seven (7) days7)-days, whichever comes first, USACE will notify the appropriate affected parties of its findings. This notification will include pertinent information as to kinds of human remains, funerary objects, Native American sacred objects, or Native American items of cultural patrimony discovered, their condition, and the circumstances of their inadvertent discovery. iii. If the remains are determined NOT to be Native American in origin, USACE will follow the principals outlined in the 2007 ACHP “Policy Statement Regarding Treatment Of Burial Sites, Human Remains and Funerary Objects” to respectfully treat the remains and determine proper disposition, disinterment, re-interment, and memorialization, as well as any Real Estate guidance at the time of the discovery. c. Initiating NAGPRA Consultation following Inadvertent Discoveries/Recovery of Human Remains from Federal Lands i. For the purposes of notification and consultation of an inadvertent discovery, USACE considers the Consulting Tribes, and Federally- Federally-recognized Tribes who have identified the County/Parish as an area of interest are likely to be cultural affiliated with inadvertently discovered NAGPRA items found on a specific Work Item. ii. Upon certification of an inadvertent discovery of NAGPRA items by the responsible federal Federal official, the USACE shall notify the consulting Federally- Federally-recognized Tribes. This notification will be made via email and telephone call to the appropriate consulting Tribes’ Primary POC within twenty-fourfour (24) hours, and include concurrent hard copy written notification, via regular mail. Notifications shall include a copy of the field documentation and a list of all other parties being notified. iii. No later than three (3) days after the email and telephone notification, the consulting Federally-recognized Tribes and/or claimant Federally-recognized Tribe shall agree to a date and time for a teleconference to begin the consultation process. d. Consultation for Inadvertent Discoveries//Recovery of Human Remains from Federal Lands that are Native American i. Consultation will begin with the teleconference with all consulting Federally-recognized Tribes and/or claimant Federally-recognized Tribe. At this time both parties may determine that the cause of the inadvertent discovery is not on-going, that the location where the discovery occurred is secure (or can be secured), and that the NAGPRA items do not need to be removed. ii. If all consulting parties participating in the consultation reach the same conclusion under A above, then the USACE will issue a written notice to all parties concluding that the location of the inadvertent discovery is secure and that the NAGPRA items will be left in place. If any consulting parties disagree with this assessment, then consultation will progress with all consulting parties including the signatories to this Agreement. iii. If consensus is not attained, the USACE will notify, in writing, all consulting Federally- recognized Tribes of its intent to complete consultation with a written plan of action in accordance with 43 CFR § 10.5(e). The USACE will produce a NAGPRA plan of action which details the steps it will follow to complete the NAGPRA consultation process (43 CFR § 10.5(e)). This plan will contain a) a list of all materials considered to be NAGPRA items, b) the planned treatment, care, and handling of the materials, c) any planned recording of the find location as an archaeological site, d) any analysis planned for the remains, e) and a description of any anticipated summary reports. USACE and the consulting Federally-recognized Tribes will create a template plan of action to be on file. iv. Within thirty (30) days of receipt of notice to consult and the action plan, the consulting Federally-recognized Tribes agree to provide a summary response containing the names and contact info for any potential lineal descendants, recommendations on any topics that should be included in consultation, request for any additional consultation meetings, recommendations for any treatment actions for the location of the discovery, and a list of any items that should be considered as NAGPRA items. Submission of this report does not preclude on-going discussion on any of these topics as consultation progresses. v. Based on the responses received, USACE may choose to update and resubmit the plan of action to all consulting parties, but at a minimum will notify all consulting parties in writing of its intent to implement the plan of action previously presented to the consulting parties. vi. At the conclusion of implementation of the plan of action, USACE will provide all of the consulting parties, in writing, copies of the draft Notice of Intended Disposition, and will provide the consulting parties thirty (30) days to comment. e. Process to Determine Disposition of Native American Human Remains from Federal Lands i. Once the thirty (30) days has commenced after providing the consulting parties with the draft copy of the Notice of Intended Disposition, and considering all comments, USACE will publish the Notice of Intended Disposition in a newspaper of general circulation in the local area, and also in a newspaper of general circulation in the local area for the Tribes. Both notices will be published a second time, at least one week later. ii. Copies of the Notice of Intended Disposition, as well as a description of when and where it was published, will be provided to the National Parks Service, National NAGPRA program. iii. USACE anticipates that during the notice period described above, discussions will begin with the appropriate claimant Federally-recognized Tribe/s regarding disposition. Disposition will generally take the form of a physical transfer of custody and reburial on USACE lands, or the claimant Federally-recognized Tribe/s may choose to rebury privately once the Tribe assumes control over the NAGPRA items.