Coordinating Section 106 Review with NEPA

NEPA and PA reviews can and should be coordinated. It is important to remember, however, that compliance with one statue does not constitute compliance with the other. PA review requirements should always be completed before a CX, EA/FONSI, or EIS/ROD is issued. Figure 5-8 compares the primary steps of PA and NEPA for review coordination purposes.

5.4.1 Categorical Exclusions (CX)

In order to ensure that a proposed action is a CX, the HPO must be sure that there are no historic properties that will be affected by the project. To accomplish this, the HPO must complete the initial steps of the PA: determining whether or not the action is an undertaking requiring review under the PA; defining the APE; and identifying and evaluating any properties in the APE. 5.4.2 Environmental Assessments (EA) and Environmental Impact Statements (EIS) In preparing an EA or an EIS, NASA LaRC should begin identification of historic properties by assessing information needs when planning the EA or scoping for the EIS. The HPO should identify historic properties and determine whether the action will affect them by applying the criteria of Adverse Effect as part of preparing the EA or EIS.

Documentation prepared for the EA or EIS can then be used to support determinations of no historic properties present or affected, no adverse effect, or adverse effect submitted to the Virginia SHPO and the Advisory Council pursuant to the requirements of the PA.

If LaRC has to consult to resolve adverse effects, or negotiate to get acceptance of a no effect or no adverse effect determination, the results (e.g., proposed mitigation) should be documented in the final EIS, or in supplements to the EA.

5.5 Native American Graves Protection and Repatriation Act (NAGPRA)

In November 1990, NAGPRA was signed into law. The law sets forth a process for the return to American Indians, Native Hawaiians, and Native Alaskans, upon request, certain human remains and other items presently held by Federal agencies or federally assisted museums or institutions. NAGPRA also gives Native American individuals and groups a formal role in the decision making process for activities carried out on Federal and tribal lands that may affect archaeological resources of importance to Native Americans.

NAGPRA contains the following provisions:

 Requirements for the intentional removal and inadvertent discovery of human remains and other cultural items from Federal and tribal lands;

 Clarifies ownership of human remains and other cultural items recovered from Federal and tribal lands;

 Sets forth a process for repatriation of human remains and other cultural items; and  Prescribes penalties for illegally trafficking human remains and cultural items. NAGPRA defines cultural items as:

 Human remains;

 Funerary objects reasonably believed to have been associated with human remains, or

by a preponderance of evidence, a specific burial site;

 Sacred religious objects; and

 Cultural patrimony, defined as material remains of historical, traditional, or cultural

importance to the Native American group or culture itself… [emphasis added].

5.5.1 Relationship of NAGPRA to the LaRC PA

NAGPRA relates to and in turn will affect the PA review process in three primary ways.

Archaeological Investigations—LaRC and non-Federal users of LaRC managed lands must formally consult with the appropriate Native American groups regarding the treatment and disposition of human remains and other cultural items recovered during archaeological investigations conducted on LaRC lands.

Excavation, by or on behalf of LaRC, of human remains and other cultural items from LaRC lands must meet the requirements of the Archeological Resources Protection Act (ARPA).

Individuals conducting research independent of LaRC must receive an ARPA permit from the Center. In addition, evidence of consultation with the appropriate tribe regarding the treatment and disposition of any human remains and other cultural items that may be encountered is also required. These requirements must be met even though a plan for data recovery or other investigations is developed through the PA review process.

Discovery Situations—The inadvertent discovery of human remains and other cultural items during land-disturbing activity requires cessation of the activity. The person conducting the activity must take reasonable protection measures and notify the HPO and other appropriate LaRC personnel who will in turn contact the relevant Indian tribe that the discovery has occurred. Disposition of the newly discovered remains or other cultural items must be resolved in accordance with the ownership provisions of NAGPRA.

Curation of Archaeological Remains—In most cases, NAGPRA allows the affiliated Native American group to decide upon the appropriate treatment (analysis, curation, or reburial are three such treatments). Only those materials that are indispensable for completion of a specific scientific study, the outcome of which would be of major benefit to the United States, can be retained following a repatriation request for human remains and objects possessed or controlled by LaRC. Such remains, however, must be repatriated within 90 days of completion of the study if so requested.

A review of LaRC's collections has been conducted in compliance with Section 6 of NAGPRA. Since no human remains and/or funerary objects were identified as a result of archival and telephone interviews with repository personnel, no Section 5 inventory is required and LaRC is currently in compliance. In the event that potential Native American human remains or items subject to NAGPRA are discovered during the course of conducting LaRC's mission, Figure 5-9 outlines the steps that LaRC should take to comply with the provisions of the Act.

At present, there are no federally recognized Indian tribes in the Commonwealth of Virginia. Disposition of Native American human remains and associated cultural items related to Commonwealth recognized tribes should be determined as a result of discussions between the Virginia Council on Indians (VCI), LaRC, and the relevant tribe. Consultation should also occur with tribal groups and organizations located outside of the Commonwealth of Virginia, specifically the United Keetoowah Band of the Cherokee Indians in Oklahoma and the Catawba Indian Nation, in an effort to identify tribes who may have a cultural affiliation either with the region or site.