[Senate Hearing 109-297]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 109-297
 
         NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT

=======================================================================

                                HEARING

                               BEFORE THE

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                                   ON

OVERSIGHT HEARING ON AMENDMENT TO THE NATIVE AMERICAN GRAVES PROTECTION 
                          AND REPATRIATION ACT

                               __________

                             JULY 28, 2005
                             WASHINGTON, DC


                    U.S. GOVERNMENT PRINTING OFFICE
22-885                      WASHINGTON : 2005
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092250 Mail: Stop SSOP, Washington, DC 20402ï¿½090001


                      COMMITTEE ON INDIAN AFFAIRS

                     JOHN McCAIN, Arizona, Chairman

              BYRON L. DORGAN, North Dakota, Vice Chairman

PETE V. DOMENICI, New Mexico         DANIEL K. INOUYE, Hawaii
CRAIG THOMAS, Wyoming                KENT CONRAD, North Dakota
GORDON SMITH, Oregon                 DANIEL K. AKAKA, Hawaii
LISA MURKOWSKI, Alaska               TIM JOHNSON, South Dakota
MICHAEL D. CRAPO, Idaho              MARIA CANTWELL, Washington
RICHARD BURR, North Carolina
TOM COBURN, M.D., Oklahoma

                 Jeanne Bumpus, Majority Staff Director

                Sara G. Garland, Minority Staff Director

                                  (ii)

  
                            C O N T E N T S

                              ----------                              
                                                                   Page
Statements:
    Barran, Paula, attorney, Barran and Leibman, LLP.............    13
    Bender, Paul, professor of law, Arizona State University 
      College of Law.............................................     7
    Diamond, Van Horn, Honolulu, HI..............................    18
    Dorgan, Hon. Byron L., U.S. Senator from North Dakota, vice 
      chairman, Committee on Indian Affairs......................     2
    Echo-Hawk, Sr., Walter, senior staff attorney, Native 
      American Rights Fund.......................................     9
    Hoffman, Paul, deputy assistant secretary, Fish and Wildlife 
      and Parks, Department of the Interior......................     2
    Inouye, Hon. Daniel K., U.S. Senator from Hawaii.............     2
    Kintigh, Keith W., Society for American Archaeology..........    17
    Lambert, Patricia M., American Association of Physical 
      Anthropologists, Utah State University.....................    11
    McCain, Hon. John, U.S. Senator from Arizona, chairman, 
      Committee on Indian Affairs................................     1
    Schneider, Alan L., director, Friends of America's Past......    13

                                Appendix

Prepared statements:
    Barran, Paula (with attachment).............................30, 101
    Bender, Paul.................................................   109
    Diamond, Van Horn (with attachment)..........................   122
    Echo-Hawk, Sr., Walter (with attachment).....................   129
    Hillaire, Darrell, chairman, Lummi Indian Nation, State of 
      Washington (with attachment)...............................   165
    Hoffman, Paul................................................   228
    Inouye, Hon. Daniel K., U.S. Senator from Hawaii.............    27
    Kintigh, Keith W.............................................   232
    Lambert, Patricia M..........................................   235
    Minthorn, Armand, member, Board of Trustees, Confederated 
      Tribe of the Umatilla Indian Reservation...................   237
    Moses, Jr., Harvey, chairman, Confederated Tribes of the 
      Colville Reservation.......................................   240
    Schneider, Alan L. (with attachment).........................    30
    Trope, Jack, executive director, Association on American 
      Indian Affairs (with attachment)...........................    98
    Wright, Jr., Mervin, member, National Working Group on 
      Culturally Unidentified Human Remains......................    28
Additional material submitted for the record:
    American Journal of Public Health, letter to the editor......   243
    Dancey, Ph. D., William S., director, Licking County 
      Archaeology and Landmarks Society, letter..................   245
    White, Ted, professor and member, U.S. National Academy of 
      Science, letter............................................   247


         NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT

                              ----------                              


                        THURSDAY, JULY 28, 2005


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:03 a.m. in 
room 485 Senate Russell Building, Hon. John McCain (chairman of 
the committee), presiding.
    Present: Senators McCain, Akaka, Dorgan, and Inouye.

   STATEMENT OF HON. JOHN McCAIN, U.S. SENATOR FROM ARIZONA, 
             CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

    The Chairman. Good morning.
    The oversight hearing today will address the Native 
American Graves Protection and Repatriation Act, specifically a 
proposed amendment to the National Graves Protection and 
Repatriation Act that was included in S. 536, a bill reported 
by the committee earlier this year.
    While other provisions in S. 536 have been acted on by the 
full Senate, no further action has been taken on the proposed 
amendment. The amendment, which many involved in the 
development of NAGPRA say is consistent with the original 
intent of the law, it would apply NAGPRA to certain human 
remains regardless of whether a connection can be established 
between those remains and a presently existing tribe.
    The proposed amendment, which was also reported out by this 
committee during the 108th Congress, and arose from litigation 
surrounding the discovery of a 9,200-year old skeleton known as 
the Kennewick Man, has generated considerable controversy in 
the scientific community. Regardless of whether they agree or 
disagree with the proposal, most scientists we have heard from 
objected to the committee not holding a hearing specifically on 
the amendment to seek the opinions of the range of stakeholders 
who participated in constructing the delicate compromise that 
is NAGPRA.
    I agree with these critics and stand corrected for not 
doing this earlier. I look forward to hearing from the 
witnesses who have joined us today.
    [Prepared statement of Senator McCain appears in appendix.]
    The Chairman. Senator Dorgan.

  STATEMENT OF HON. BYRON L. DORGAN, U.S. SENATOR FROM NORTH 
       DAKOTA, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

    Senator Dorgan. Mr. Chairman, thank you very much.
    I think you well described the purpose of this hearing. 
These issues are really very important spiritual issues. Many 
of us have dealt with them in different ways with our 
individual tribes. We have passed Federal legislation that has 
been subject now to a court interpretation of some controversy. 
I appreciate the fact that you are holding this hearing.
    I note we have a Commerce Committee markup at the same time 
so I know we will have to juggle some of these pieces of 
testimony, but thank you very much for the hearing.
    The Chairman. Senator Inouye.

  STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII

    Senator Inouye. I would like to join my colleague in 
thanking you for holding this hearing. It promises to be a most 
interesting one. But as noted, we have many conflicts this 
morning and I find that I will have to be at another meeting, 
but may I have my statement made part of the record?
    The Chairman. Without objection.
    [Prepared statement of Senator Inouye appears in appendix.]
    The Chairman. Our first witness is Paul Hoffman, Deputy 
Assistant Secretary for Fish and Wildlife and Parks, Department 
of the Interior. Welcome, Mr. Hoffman. Your complete statement 
and all written complete statements will be made part of the 
record. Thank you for coming this morning. This is not only a 
controversial issue, but in many ways a very fascinating one.
    Go ahead, Mr. Hoffman.

STATEMENT OF PAUL HOFFMAN, DEPUTY ASSISTANT SECRETARY FOR FISH 
       AND WILDLIFE AND PARKS, DEPARTMENT OF THE INTERIOR

    Mr. Hoffman. Yes, sir; thank you, Mr. Chairman. I am 
pleased to be here today and to have the opportunity to testify 
before your committee on behalf of the Department of the 
Interior regarding the Native American Grave Protection and 
Repatriation Act, the Bonnichsen v. United States court 
decision concerning the disposition of the Kennewick Man 
remains, and the amendment as proposed in S. 536.
    The department opposes amending NAGPRA to alter the 
decision of the Ninth Circuit Court as proposed in the 
technical amendments of the Native American Omnibus Act.
    The Chairman. Could I interrupt you, Mr. Hoffman?
    Mr. Hoffman. Yes, sir.
    The Chairman. Is that in keeping with the Administration's 
previous position?
    Mr. Hoffman. This Administration actually never took a 
position on it. When we took office, this process was being 
litigated and worked out. We determined at that time to allow 
the agencies to work this out and to let the litigation proceed 
in order to hear the court's opinions and construction of the 
law. We are compelled by their argument.
    NAGPRA was enacted in 1990 to address the rights of lineal 
descendants, Indian tribes and Native Hawaiian organizations to 
certain Native American human remains, funerary objects, sacred 
objects and objects of cultural patrimony. The law directed the 
Secretary of the Interior to promulgate regulations, provide 
staff, make grants to assist organizations in their compliance 
with the law, extend inventory deadlines when those 
organizations are demonstrating good faith in complying with 
the law, publish notices of completed inventories and notices 
of intent to repatriate either human remains or cultural items.
    The department has the authority to assess civil penalties 
for failure to comply and respond to notices of inadvertent new 
discoveries on Interior lands. Every Federal agency has their 
own responsibility under NAGPRA to ensure that their agency is 
in compliance with it, but the national NAGPRA program is 
administered within the Department of the Interior under the 
National Park Service.
    Some statistics to note, the Congressional Budget Office 
estimated at the time of the passage of NAGPRA that there were 
somewhere between 100,000 and 200,000 human remains in 
collections as of 1990. The NAGPRA program has successfully 
repatriated 31,093 human remains over the past 15 years and 
approximately 111,000 human remains have been identified as 
culturally unidentifiable.
    The Bonnichsen v. United States court decision addressed 
the question of whether the Kennewick Man remains were Native 
American under NAGPRA. The U.S. Army Corps of Engineers and the 
Department of the Interior had determined that the remains were 
Native American because they predated the arrival of Europeans.
    The District Court and the Court of Appeals ruled against 
the United States, saying to be Native Americans. There must be 
a general finding that the remains have a significant 
relationship to the presently existing tribe, people or culture 
and that the relationship must go:

    Beyond features common to all humanity. Relying only upon 
the age of the remains that predate European arrival is not 
sufficient to conclude that the remains are Native American.

    This is from the court decision. Also from that decision, 
congressional intent was:

    To give American Indians control over remains of their 
genetic and cultural forbears, not over the remains of people 
bearing no special and significant genetic or cultural 
relationship to some presently existing indigenous tribe, 
people or culture.

    I would note for the record that there have been human 
remains of nearly the same age as the Kennewick Man that both 
predate Europeans and have been demonstrated to have 
significant or special relationship to existing tribes, 
peoples, or cultures.
    The amendment in S. 536 would change the definition of 
``Native American.'' The term ``Native American'' would mean of 
or relating to a tribe, people or culture that is, and the 
amendment inserts, or was indigenous to any geographic area 
that is now located within the boundaries of the United States.
    We believe that the Ninth Circuit Court of Appeals 
correctly interpreted the law and the intent of Congress, which 
was to give American Indians control over remains of their 
genetic and culture forbears, not over the remains of people 
bearing no special or significant genetic or cultural 
relationship to some presently existing indigenous tribe, 
people or culture. NAGPRA should protect the sensibilities of 
current existing tribes, peoples and cultures, while balancing 
the need to learn about past cultures and customs.
    By adding the words ``or was'' to the definition of Native 
American, the proposed amendment would shift away from this 
balance.
    Thank you, Mr. Chairman. I would be happy to answer any 
questions.
    [Prepared statement of Mr. Hoffman appears in appendix.]
    The Chairman. Thank you very much.
    In Bonnichsen v. United States, the Department of the 
Interior argued that the Kennewick Man remains met the 
definition of ``Native American'' and so were covered by 
NAGPRA, but today you are testifying that they should not be 
covered by NAGPRA. You are asserting that the department has 
not changed its position?
    Mr. Hoffman. Up until the court decision in Bonnichsen v. 
United States, the Department of the Interior had taken the 
position that if the remains predated European arrival in the 
Americas, then the remains would be presumed to be Native 
American. The court interpreted it differently, and we believe 
provided a compelling argument for a change in that application 
of the definition.
    The Chairman. Are there remains other than the Kennewick 
Man's remains that are affected by this court decision?
    Mr. Hoffman. Potentially. As I indicated, there are a 
number of remains of approximately the same age as the 
Kennewick Man. Some of them have been repatriated. I believe 
they have been repatriated. I know they have been identified as 
culturally affiliated because of where they were found and 
objects that were found with those remains that could tie those 
remains to a specific living tribe, culture or people group.
    The Chairman. The coalition of Indian tribes in the court 
case sought to prevent scientific study of the remains on the 
grounds that this was offensive to their religious belief. Now 
that this decision has made it clear that not all indigenous 
remains are Native American, how can one establish whether 
remains are or are not Native American without offending these 
beliefs?
    Mr. Hoffman. The challenge in NAGPRA is that, I have been 
involved in a lot of discussions since my arrival at the 
Department of the Interior about 3\1/2\ years ago, and it seems 
to me it is about one part law, two parts philosophy, and three 
parts spiritual issues. Our charge is to deal with the law and 
what the law says.
    How would we deal with future remains or other remains 
would be that if we could establish a significant or genetic 
link to an existing living culture, tribe or people group, then 
those remains would be repatriated. If we cannot, then those 
remains would not be repatriated.
    The Chairman. Senator Dorgan.
    Senator Dorgan. Mr. Hoffman, you are in the process of 
writing regulations, are you not?
    Mr. Hoffman. Yes.
    Senator Dorgan. Can you give us a status? What is 
happening? What is the timing of regulations that would 
implement that section of NAGPRA which established the process 
for disposition of culturally unidentifiable human remains?
    Mr. Hoffman. Those regulations have been in process for a 
number of years and under review for a number of years. I am 
not familiar with the immediate status of those, but I will be 
glad to get back to you with that answer.
    Senator Dorgan. I never understand what that means when an 
agency says they have been in process for a number of years. It 
seems to me that if one undertakes the responsibility of 
writing a set of regulations, you write them, you put them out 
for comment, then you implement the regulations. So when did 
this start and when do you expect to be completed?
    Mr. Hoffman. I would be glad to get back to you on the 
actual start date and an estimated completion date. I do not 
know that off the top of my head. I appreciate what you are 
saying. Some Administrations advance regs; other 
Administrations come in and may have a different feeling about 
those regs and may just choose to let that regulation 
development stay in abeyance. That is not a pretty story about 
the process, but it is certainly a real one.
    Senator Dorgan. It is a great quicksand out there, isn't 
it, for the regulatory issues. They just seem to go on and on 
and on.
    Let me ask about attorneys fees awarded under the 
litigation that my colleague referred to. Is the department 
paying attorneys fees awarded under that litigation, do you 
know?
    Mr. Hoffman. Yes, sir; we are paying approximately $680,000 
in attorney fees to the plaintiffs.
    Senator Dorgan. And where does that money come from?
    Mr. Hoffman. That money will be coming from the NAGPRA 
grant program.
    Senator Dorgan. So that is the grant program that we 
provided funding for? Okay. Well, I also just would observe, I 
think the chairman was suggesting there seems to be a conflict 
in the department's previous position on this and current 
position. I think you have answered the inquiry by the 
chairman, but I think there is a conflict there.
    I appreciate your being here today, Mr. Hoffman.
    Mr. Hoffman. Thank you.
    The Chairman. Senator Inouye.
    Senator Inouye. Thank you.
    Mr. Hoffman, you indicated that you know that to be 
declared a Native American, those remains must be culturally 
related to the present tribe or Indian?
    Mr. Hoffman. To a living tribe, people or culture.
    Senator Inouye. Who has the burden of proof? Is the 
department the one to say that you are not or do the Indians 
have the burden of proof of saying we are?
    Mr. Hoffman. Most remains are in the possession of either 
Federal agencies or museums or organizations that are studying 
the remains. They are in collections, if you will. It is under 
the law, the obligation of the people in possession of the 
remains to identify whether those remains are culturally 
unidentifiable or culturally unidentifiable. The normal process 
is that the department, the NAGPRA office, then makes the list 
of culturally identifiable remains available to the public and 
tribes, Native Hawaiians and other groups can then petition, if 
you will, to make their case for why they believe the remains 
are identifiable.
    Senator Inouye. And who determines what remains are 
culturally identifiable?
    Mr. Hoffman. In the case of new discoveries, the Federal 
land manager--if on Federal lands--or the Indian landowner--if 
on tribal lands--makes the determination as to whether NAGPRA 
applies and the eventual disposition of the remains. In the 
case of collections, the Federal agency or museum that receives 
Federal funds which has control of the items is responsible for 
making that determination.
    Senator Inouye. So the Department of the Interior does 
that?
    Mr. Hoffman. The Department of the Interior would only make 
that decision if the new discovery was on Interior lands or if 
the collection was owned by a Federal agency within Interior, 
or in very limited cases, if the Secretary of another 
department delegates responsibility to the Secretary of the 
Interior.
    Senator Inouye. Now, you have indicated that there are 
111,000 culturally unidentifiable remains.
    Mr. Hoffman. Yes, sir.
    Senator Inouye. What happens if this bill passes? What is 
the impact?
    Mr. Hoffman. If this bill passes, things would go on 
largely as they have been proceeding since the passage of the 
act.
    Senator Inouye. And you believe that your amendments will 
resolve this matter?
    Mr. Hoffman. Mr. Chairman, our position is we are opposed 
to the amendment. I am guessing it is the belief of those who 
are proponents of the amendment that it will resolve the 
matter. We believe that there needs to be an appropriate 
balance between not offending the sensibilities of these 
existing living cultures, tribes and people groups and the need 
to be able to study some remains further in order to determine 
whether they are affiliated or what the origins are or how it 
led to the establishment of people in the North American 
continent, specifically the United States.
    Senator Inouye. Mr. Chairman, I have many other questions. 
May I submit them later?
    The Chairman. Without objection.
    Senator Inouye. Thank you very much.
    The Chairman. Thank you very much, Mr. Hoffman. We will 
continue to work with you and we hope that you will have a 
report for Senator Dorgan about the process.
    Mr. Hoffman. Yes, sir; I will. Thank you very much.
    The Chairman. Thank you very much.
    Our second panel is Paul Bender, professor of law at 
Arizona State University College of Law; Walter R. Echo-Hawk, 
senior staff attorney, Native American Rights Fund; Patricia 
Lambert, American Association of Physical Anthropologists at 
Utah State University; Paula Barran, an attorney for Barran and 
Leibman in Portland, OR, accompanied by Alan Schneider, 
director of friends of America's Past; Professor Keith Kintigh, 
Society for American Archaeology in Tempe, AZ; and Van Horn 
Diamond of Honolulu, HI.
    We will begin with our old friend, Paul Bender. Welcome 
back.

   STATEMENT OF PAUL BENDER, PROFESSOR OF LAW, ARIZONA STATE 
                   UNIVERSITY COLLEGE OF LAW

    Mr. Bender. Thank you, Senator. And thank you for your 
leadership in this whole project from the beginning of the 
statute.
    I am here because I was a facilitator of the dialog panel 
which I think you recommended should be convened. That dialog 
panel, Mr. Echo-Hawk was on the panel, came up with a consensus 
about what the statute should contain. The Ninth Circuit 
decision is just wrong about the definition of ``Native 
American.'' The reason it is wrong is because it failed to 
understand that NAGPRA has two principal purposes.
    One is repatriation, but to me, and I think to the panel 
the more important one was consultation, admitting Indian 
tribes into the consultation process so that, for example, when 
you discover old remains in a building project, you have to 
notify tribes and consult with tribes about whether they are 
affiliated. Under the Ninth Circuit decision, there would be no 
consultation, or there wouldn't have to be any consultation. 
The museum that had remains or people who discovered remains 
could just make the decision that, hey, there is no present day 
tribe that is affiliated and go on and treat them as if they 
were not Native American.
    The term ``Native American'' is meant to be tremendously 
inclusive in order to permit the tribes to engage in 
consultation about whether they are culturally related to a 
present day tribe, and that the repatriation standard is what 
the Ninth Circuit said the Native American standard was.
    The repatriation standard is whether there is a 
relationship with a present day Indian tribe, but materials are 
Native American before you make that determination because if 
it is determined that they are not affiliated with a present 
tribe, the statute says those remains or the fate of those 
remains is in the hands of the review committee that the 
statute set up. The review committee is explicitly told to 
compile an inventory of culturally unidentifiable human remains 
that are in the possession or control of Federal agencies or 
museums, and recommend specific actions for developing a 
process for disposition of such remains.
    If unidentified remains or unaffiliated remains are not 
Native American remains, this provision has absolutely no 
meaning because culturally unidentified material would not be 
Native American and would not go before the committee. I think 
that illustrates what is wrong with the Ninth Circuit's 
interpretation. It focused on repatriation. It said, hey, we 
should not repatriate things unless they are related to a 
present day tribe.
    That is generally true under the statute, but the important 
thing is that before you decide whether they are affiliated, 
you have to consult with tribes and with a review committee. 
The Ninth Circuit decision just strikes that completely from 
the statute.
    The consultation part of the statute was to me the more 
important part. The thing that struck me in the dialog panel 
was that the principal anger of the tribes over many years was 
the failure to consult. Museums would have things and would say 
we know what they are; we are not going to talk to you; we are 
not even going to let you see them. When they consulted, 
generally there was an agreement about whether they were 
related to a tribe and what should be done with them. It was 
the failure to consult, the failure to admit Indians into the 
process of deciding whether they were Native American, whether 
they were related to a present day tribe, whether they ought to 
be repatriated.
    The statute carefully set up a two stage process. First, 
you consult and then you make a decision. If the decision is 
that they are not related to a present day tribe, then they go 
to the review committee. The review committee is supposed to 
decide what happens to them. The Ninth Circuit seemed to think 
that the only thing the statute was for was to repatriate.
    That is just not true. Under the Ninth Circuit decision, 
that whole consultation part of the statute would be canceled 
because you would dig up a skeleton; you would say, hey, do I 
think this is related to a present day tribe? No. Therefore, I 
can go ahead and destroy it, throw it away.
    The statute meant to say when you dig up and old skeleton, 
you stop and the statute says you have to stop, and you consult 
with the appropriate tribes. Through that consultation process, 
you try to decide whether they are repatriatable remains. It is 
really important to have the tribes involved in that.
    It is also really important to have the tribes, even if you 
decide that the remains are not affiliated with a present day 
tribe, it is really important to have Indians involved in the 
decision in the review committee about what should happen to 
these old remains. The review committee contains Indian 
representatives.
    The Ninth Circuit decision just throws that out and acts as 
if the only question is, are these repatriatable. So a museum 
with remains or a museum with any cultural objects could say, 
well, we do not think there is a present day tribe that is 
related to these so we don't have to tell anybody about them.
    Well, they have made the decision that they are not 
affiliated. The whole point was they were supposed to inform 
tribes so that they could consult with them about whether they 
were affiliated. That is the part of the process that the Ninth 
Circuit decision leaves out.
    If you change the statute the way the amendment proposes, 
you would not change the repatriation standard at all. It 
remains exactly the same. What you would change is the need to 
bring Indians into the process of deciding whether they are 
affiliated and if so, who they are affiliated with. I think 
that is really important to do.
    [Prepared statement of Mr. Bender appears in appendix.]
    The Chairman. Thank you very much.
    Why do you think the Administration opposes?
    Mr. Bender. I haven't got the slightest idea. They were 
right the first time. They clearly understood that indigenous 
meant any indigenous people prior to the Europeans' arrival; 
any indigenous materials like that were under NAGPRA. Why they 
have changed their mind about that, I do not know.
    The Chairman. Welcome, Mr. Echo-Hawk.

 STATEMENT OF WALTER R. ECHO-HAWK, Sr., SENIOR STAFF ATTORNEY, 
                  NATIVE AMERICAN RIGHTS FUND

    Mr. Echo-Hawk. Thank you, Mr. Chairman. Good morning, 
members of the committee, Senator Inouye and Senator Dorgan.
    It is a pleasure to be back before the committee to discuss 
today's subject. I am familiar with the issue today by virtue 
of my work since 1986 on repatriation issues. I was a member of 
the panel that was referred to in Professor Bender's testimony. 
I worked closely with the committee, gave testimony on NAGPRA 
and worked with the staff in the development of NAGPRA on 
behalf of Native clients.
    Subsequent to that, I have worked on the implementation of 
the statute by representing tribes in repatriation claims. I 
also participated in the Bonnichsen case as counsel to amicus 
parties to try to effectuate the statute and ensure that it was 
properly interpreted by the court. So I am familiar with 
today's issues.
    My written testimony is in the record. I will just briefly 
summarize it and I would like to address myself, time 
permitting, to the comments made by the Administration, which I 
feel are a very sad retreat from its earlier position. I would 
like to introduce for the record the brief that was submitted 
by the United States in the Bonnichsen case where it supported 
very strongly the definition of Native American as including 
all indigenous Native people indigenous to the United States 
and their regulations implementing NAGPRA.
    So it was very sad for me today to see the Department of 
the Interior break its word that it gave to the Ninth Circuit. 
I think when it comes to a human rights matter, we lose 
credibility when the Department says one thing to one branch of 
the Government and then the opposite to another branch. So if I 
may, I would like to introduce the United States' brief into 
the record of this hearing, if I may.
    The Chairman. Without objection. It will be made a part of 
the record.
    Mr. Echo-Hawk. Thank you, Mr. Chairman.
    [Referenced document appears in appendix.]
    Mr. Echo-Hawk. Today, I represent a working group of 
prominent Native Americans who are concerned with unknown 
Native American dead, those dead who are currently listed as 
not being culturally affiliated or having any known 
descendants. According to the testimony of the Administration, 
there are 111,000 of these unknown dead. My clients are 
concerned about their fate and their proper disposition, and 
particularly those provisions of NAGPRA which expressly pertain 
to their classification, their treatment and their disposition.
    I fully agree with the very sound legal analysis provided 
by Professor Bender regarding the impact of Bonnichsen on 
NAGPRA. The court's interpretation was incorrect for the 
reasons that he gave in his testimony. I would just simply add 
two things in my written testimony on that point, on the 
correctness of the opinion.
    It is very telling that the court did not cite any direct 
legislative history concerning section 3001(9), the definition 
of ``Native American'' to support its narrow restrictive 
holding. And the reason why, Mr. Chairman, is that there is no 
direct legislative history behind that section. The reason why 
is there was no debate, there was no argument, or no 
controversy concerning that section at the time it was crafted.
    All of the parties, everyone who worked on the legislation, 
including myself, logically assumed that NAGPRA would apply to 
any Native Americans that are indigenous to the United States. 
That is the reason why there are special statutory sections 
that deal with these individuals, these unknown individuals. 
That is why the Secretary of the Interior promulgated 
regulations on that assumption and took the position it did in 
Bonnichsen, because we were all under that assumption, and the 
court undercut the scope of it.
    And second, it is very telling that the court even 
recognized that there is a disparate coverage now for Native 
American and Native Hawaiian. The court said we do not have 
this threshold showing for Native Hawaiians because Congress 
used different language, using geographic criteria. But I know 
that Congress did not intend to have broader coverage for 
Native Hawaiians than Native Americans.
    So the Ninth Circuit decision is wrong. It nullifies 
various provisions in the statute that are referenced in my 
testimony. It restricts the coverage of the statute seriously. 
So I earnestly urge the committee to continue working on this 
problem to get us back on the path that was established by all 
of us in 1990. I think we were all well pleased with the work 
that was done then and considered it landmark, consensus human 
rights legislation.
    As a practitioner of Federal Indian law for 30 years, I 
have had occasion to study the history of Federal Indian law, 
Mr. Chairman. I have seen, and I think scholars will agree with 
me, and Senator Inouye I have heard him as well, that there has 
been far too much abrogation of Indian treaty rights and Indian 
rights in the history of our great Nation. It is within the 
power of Congress to ensure that its human rights measures 
enacted for Native Americans are not abrogated by other 
branches of the Government.
    That is what occurred in the Bonnichsen case. I think we 
just witnessed the Department of the Interior in today's 
hearing attempt to abrogate the statute as well, retreating 
from its position. That is very sad to see. I thought those 
days were past. So I just respectfully say and urge the 
Committee in the name of the national honor to uphold this 
human rights statute and ensure that our intent is effectuated.
    I thank you for the opportunity again to be here, and I 
pledge any assistance to work with the committee as we continue 
to look at this serious impairment of the NAGPRA objectives 
that has resulted.
    Thank you.
    [Prepared statement of Mr. Echo-Hawk appears in appendix.]
    The Chairman. Thank you very much.
    Ms. Lambert.

   STATEMENT OF PATRICIA M. LAMBERT, AMERICAN ASSOCIATION OF 
              PHYSICAL ANTHROPOLOGISTS, UTAH STATE
                           UNIVERSITY

    Ms. Lambert. I am here representing the American 
Association of Physical Anthropologists. We want to thank you 
for the opportunity as well to present testimony before the 
committee. I will read this to make sure I get it right.
    The American Association of Physical Anthropologists is the 
largest professional society devoted to the study of physical 
anthropology in the United States. We were part of the 
coalition of Native American and scientific groups that worked 
for the passage of the Native American Graves Protection and 
Repatriation Act. We continue to support the key goal of 
ensuring that culturally affiliated federally recognized tribes 
are allowed to make decisions regarding the disposition of 
their ancestral remains.
    During the NAGPRA negotiations, it was our understanding 
that the term ``Native American'' encompassed both modern and 
ancient indigenous groups, including the many earlier 
archaeologically documented cultures that have disappeared and 
thus are not culturally affiliated with any modern federally 
recognized tribe.
    The Ninth Circuit Court's ruling in the case of Kennewick 
Man makes it clear that the current NAGPRA definition of 
``Native American'' does not reflect this commonsense 
understanding of the term. We consequently do not object to the 
insertion of ``or was'' into the current definition to clarify 
its meaning.
    However, we do have a concern about the timing of the 
proposed amendment. It is impossible to judge the effects of 
the proposed change in the absence of regulations regarding the 
disposition of culturally unidentifiable human remains. This 
apparently minor word change in the definition of ``Native 
American'' could have profound legal ramifications at odds with 
the intent of NAGPRA depending on how the regulations are 
worded.
    NAGPRA has been a success because of the careful way it was 
crafted to balance the disparate interests of many different 
groups of Americans in archaeological remains. NAGPRA's 
specific instructions regarding the composition of the review 
committee makes this balance of interests very clear.
    The key to the compromise that allowed so many different 
groups to support NAGPRA's passage resides in the concept of 
cultural affiliation. NAGPRA provides culturally affiliated 
tribes with the right to reclaim the remains of their ancestors 
where lineal descent or relationship of shared group identity 
can be clearly established, based on the preponderance of a 
broad range of different types of evidence.
    However, when a reasonably close relationship between human 
remains and a modern federally recognized tribe cannot be 
established, NAGPRA permits human remains to be retained for 
scientific study. In this way, NAGPRA balances the undisputed 
right of close relatives to decide about the disposition of 
their ancestral remains, against the rich array of historical 
insights that can be derived through scientific study for all 
Americans.
    The troubling aspect of the Kennewick case in our opinion 
is not the fact that the Secretary of the Interior considered 
the Kennewick remains to be those of a Native American. 
Instead, it derives from the Secretary's lack of adherence to 
the statutory definition of ``cultural affiliation,'' which is 
a ``relationship of shared group identity which can be 
reasonably traced between a present day Indian tribe and an 
earlier identifiable group.''
    We also feel there was a lack of appreciation for the 
balance which is at the heart of NAGPRA.
    Such attempts by the DOI to extend the concept of cultural 
affiliation to encompass very ancient remains with no 
demonstrable relationship to any modern tribe makes us 
apprehensive about the way the amendment you are currently 
considering will interact with pending draft regulations 
dealing with culturally unidentifiable human remains because 
the proposed amendment will bring very ancient remains like 
Kennewick Man under the purview of NAGPRA by defining them as 
Native American.
    We want to remind the committee that NAGPRA neither 
instructs nor provides authority for mandatory mass 
repatriations of culturally unidentifiable human remains to 
culturally unaffiliated groups. It does not say that anywhere. 
However, it seems likely, based on the position the DOI took in 
the Kennewick case, that the proposed regulations will attempt 
to do just that.
    Given these concerns, we hope that you will consider 
delaying the passage of the proposed amendment until 
regulations dealing with culturally unidentifiable human 
remains are promulgated. We look forward to your assistance in 
making sure that any regulations dealing with such collections 
balance the absence of a relationship of shared group identity 
against the value of these remains to all Americans as a source 
of information about our collective past.
    Culturally identifiable remains have enormous scientific 
value for learning about life in distant times. They also have 
provide insights for modern day medical and forensic concerns. 
I would be happy to elaborate on that.
    In summary, we support the spirit of the proposed amendment 
and withhold our full support only because the legal 
ramifications of this change in statute cannot be fully 
assessed in the absence of regulations dealing with the 
disposition of culturally unidentifiable human remains.
    Thank you.
    [Prepared statement of Ms. Lambert appears in appendix.]
    Senator Dorgan [presiding]. Ms. Lambert, thank you very 
much.
    The Chairman had to go down to the Commerce Committee which 
is downstairs to offer an amendment on a markup. He will be 
back, at which point I will go down and offer my amendment on 
the markup of another bill, so we are having to juggle in this 
manner, but Senator McCain will be back in a bit.
    Next, let me call on Paula Barran, attorney at Barran and 
Leibman, Portland, OR, accompanied by Alan Schneider, Director 
of Friends of America's Past in Portland, OR.
    Ms. Barran, thank you very much for being here.

 STATEMENT OF PAULA BARRAN, ATTORNEY, BARRAN AND LEIBMAN, LLP; 
    ACCOMPANIED BY: ALAN L. SCHNEIDER, DIRECTOR, FRIENDS OF 
                         AMERICA'S PAST

    Ms. Barran. Thank you, Senator. I appreciate the 
opportunity to be here, as does Mr. Schneider.
    We are the attorneys who handled the Bonnichsen v. United 
States case from almost the moment that the skeleton of the 
Kennewick Man was discovered in the Columbia River 9 years ago 
this week. We are continuing to handle it today.
    I must say that I very much disagree with Professor 
Bender's analysis of the Ninth Circuit and its opinion in that 
case. I argued the case before the Ninth Circuit, and before 
that Mr. Schneider and I briefed the case, and before that we 
tried the Kennewick Man case, and before that we consulted or 
attempted to consult with the Government.
    One of the problems that we ran into, in addition to some 
very shameful treatment by the government in this case, which I 
will elaborate on briefly, one of our issues was not that the 
Department of the Interior and the Army Corps of Engineers was 
consulting with the tribes. We thought that was wonderful and 
that was the way the statute was intended to be.
    Our problem was that the moment that skeleton was seized by 
the Army Corps of Engineers, our clients, who were the most 
distinguished physical anthropologists in this country, were 
literally shut out of that process. We were told by the 
Government that it was our job to figure out what to tell them, 
but they were not going to talk to us. They were not going to 
tell us what they were finding.
    But they also ridiculed us and they ridiculed our clients, 
people who have written the books about the prehistory of this 
country. I found that treatment to be a terrible thing to 
experience as an American.
    Nine years ago this week, the Kennewick Man skeleton was 
discovered and he is magical; 2 weeks ago, the scientific team 
finally ended its first round of investigation into that 
skeleton. I tell you, what they are discovering is just a 
magical wonderful part of the peopling of the Americas. It was 
8,000, 9,000, 10,000, maybe longer, many, many years ago, 
people walked this land.
    They walked the continental United States and they were not 
American Indians as we know those people today. They are 
different. Kennewick Man is different. There are a handful of 
ancient skeletons and they have the capacity to tell us so much 
about the prehistory of this country.
    But we have so very little to work from. One of the reasons 
that Kennewick Man sparked the battle that he did is the 
incredible value of an almost complete 9,000 year old skeleton 
with a spear point in his hip, a tall man, five foot ten inches 
or so, who lived to a very, very ancient age, 9,000 years ago, 
more than 500 generations before the pyramids. This man walked 
our country and he was not an American Indian as we know it 
today.
    But the Army Corps of Engineers seized that skeleton and 
immediately announced its intention to ``do exactly what the 
Umatilla have requested us to do,'' which means to rebury that 
skeleton with no opportunity to find out what he meant and what 
he could tell us.
    I mentioned that we have very, very little to look on to 
understand the prehistory of this country. It is a little bit 
like trying to understand all of Shakespeare by reading two 
sonnets in the balcony scene from Romeo and Juliet. There was a 
culture here many, many millennia ago, and we deserve as 
Americans to understand that.
    What you are looking at today in this proposed amendment, 
which I think has a misnomer of a technical amendment. It is 
not. It is a sweeping change. You are going to take those 
ancient cultures and you are going to stamp them with the stamp 
that says you are Native American as we understand that today, 
and we are not ever going to let you tell us the story of what 
it was like so long ago.
    I think you have been told today and you have been told as 
this statute has developed and as these proposed amendments 
have been developed that they will not make any change; they 
will go back to the original intent of NAGPRA. We came here 
today out of Oregon, where I do not think any sane Oregonian 
would leave in the summer, because we wanted to talk to you 
about the drastic changes that these proposed amendments are 
going to make.
    The first step that happens when you are looking at a 
skeleton is to make a determination whether or not it is Native 
American. Once that happens, there are very, very severe 
consequences to that decision.
    The second analysis is whether or not that Native American 
skeleton is culturally affiliated. That is a very important 
structure, we think, because the consequences of calling 
something ``Native American'' means that skeleton, and I am 
going to just talk about remains because that is what we had in 
Kennewick Man, that skeleton can be automatically turned over 
to people who have no relationship to it simply because you 
called it ``Native American.''
    There is a form under NAGPRA, under the graves statute, of 
automatic ownership. That can happen, for example, if the 
Department of the Interior promulgates regulations that will 
just give over these ancient remains without proof of a 
relationship. But there are also provisions in the statute that 
automatically give over ownership based simply on geography.
    So for example, if you find ancient remains, 9,000 years 
old, and you find them on land that was declared in some 
ancient court case to have been aboriginal, it will 
automatically be turned over to people who have no need to show 
that they have a demonstrable connection. So that is the first 
consequence of calling something ``Native American.''
    The second consequence, and this is one that we very, very 
much experienced during the Kennewick Man battle and the 
Kennewick Man litigation, once you say something is Native 
American, the only people who can make a claim for those 
remains are people who are today Native American. We were told 
repeatedly after the Kennewick Man skeleton was discovered that 
because our scientists were not Native American, they had no 
right to even be heard on what would happen to that skeleton, 
even though as it turned out that skeleton bears no 
relationship whatsoever, including from the government's own 
study team, no relationship whatsoever to modern day Native 
Americans.
    He is different. His closest affinities are Polynesian or 
the Ainu of Japan, the prehistoric ancestors of the Ainu of 
Japan.
    Let me give you a hypothesis of what might happen and what 
we might discover here. Suppose, just suppose for 1 moment that 
this land was originally settled by people who came up from the 
south, from Central America or South America or Mexico and they 
moved into what is now the continental United States, and then 
they were pushed back out, but they had for a while a thriving 
culture. And then later, many, many centuries later they came 
back.
    What you would be doing is to say, your remains, those 
ancient people whose ancestors were ancestral to Hispanic 
populations, are not Native American and their ownership is 
being transferred to claiming Indian tribes when that is a 
totally different culture. And you are saying, you don't matter 
to us. Your culture does not matter to us; 12 percent of our 
population in this country today is Hispanic, and that is not 
an unlikely consequence of what we might discover.
    I also mentioned earlier in my remarks that the Government 
acted most shamefully in this case. I want to give you a couple 
of examples of that so you will understand why we came here and 
why this was so important, and why we battled in court for 
years and years and years over the right to study this 
skeleton.
    The first thing that we noticed when we were finally given 
access to the administrative record is that an employee of the 
Department of the Interior, just an employee, not a policy 
setter, was writing memoranda about how he wanted to suppress 
thought on how this country might have been peopled. Now, I 
think that is terrifying, to have an employee in a government 
agency start telling people that he wanted to control these 
remains so that we could not find anything out because he did 
not like a particular theory that science was advancing.
    Senator Dorgan. Would you submit that for the record? I 
assume that is part of your argument.
    Ms. Barran. Yes, sir; it is part of the administrative 
record and I would be happy to.
    Senator Dorgan. Would you submit it? Thank you.
    Ms. Barran. The second thing that happened is in April 
1998, this body, the Senate and the House of Representatives 
passed a bill. That bill was to forbid the destruction of the 
Kennewick Man discovery site. It was passed. It was sent to the 
White House for signature. And then unfortunately, you took an 
Easter recess and as soon as Congress closed down for the 
weekend, the Army Corps of Engineers' helicopters took off and 
dumped tons of rubble over the Kennewick Man discovery site. 
They ruined it. We will now never know what was buried there.
    And one of the things that we are starting to see from this 
first scientific study of the skeleton is he might have been 
intentionally buried there, but we will never have the 
opportunity. That was an astonishing act from the Army Corps of 
Engineers to be so openly defiant of Congress.
    The third thing that happened was this level of 
appeasement. We never walked into court wanting to fight with 
the tribes with whom we have incredible respect. Our clients 
study their culture. But we did walk into court saying that our 
clients, our scientists should be treated fairly in this 
process and we all, as Americans, should have the right to 
learn about Kennewick Man. But we saw memorandum after 
memorandum saying if we get the right answer the first time, we 
will not even allow anybody to study. We will do what the 
tribes want us to do with this incredible skeleton, this most 
incredible skeleton.
    The last thing that happened was a level of astonishing 
insult from these agencies. We stood in Federal court in 
Portland, OR and listened to a Department of Justice attorney 
call these scientists ``savagers of Indian heritage.'' We 
listened to them. We heard them calling Dr. Owsley who sits 
here today from the Smithsonian Institution a ``paleo-cowboy.'' 
One of the NAGPRA officials told Mr. Schneider here that he 
didn't want to let a bunch of old bones get in the way of doing 
other important business.
    The Department of the Interior and the Army Corps of 
Engineers did that under the current statute. So we ask you to 
think about what they will do if you give them broader powers 
under this new definition.
    The last effect that I think you will see is what is a 
hamstringing of education in this country. Senator, I have 
earned five university degrees. I have earned three of them in 
this country. Until this case, I would stack my experience up 
against anything that any other country can give us. But now, 
anthropology departments are starting to send their Ph.D. 
candidates out of this country to do their study because they 
cannot have access to the remains that they need to complete 
their studies.
    If you pass this amendment, if you pass this bill, you 
might as well shut down paleoanthropology studies in American 
universities. Our scholars of tomorrow will be trained by 
foreign scientists who are trained elsewhere, if we train them 
at all. I find that to be a very, very sad outcome.
    So when I was flying across the country yesterday, I was 
thinking a lot about being an American and what it has always 
meant to me, and what it meant to me during this litigation and 
what it meant to me to have a judicial system that could rein 
in the overweening pride and hubris of these Government 
agencies that we had to do battle for so many long years.
    I was reminded that when this country was formed, even 
people like Thomas Jefferson, who was no mean scientist in his 
own right, remarked that we would not ever be afraid to follow 
truth wherever truth will take us. I ask this committee to 
please don't prove him wrong.
    [Prepared statement of Ms. Barran appears in appendix.]
    Senator Dorgan. Ms. Barran, thank you very much for your 
testimony.
    You know Mr. Bender, is that right?
    Ms. Barran. I do not. I have met Mr. Bender for the first 
time today.
    Senator Dorgan. We will probably have a chance during the 
question and answer session to exchange views, since you 
described Mr. Bender's views. I appreciate very much the 
opportunity to have conflicting sets of interests and views 
here so the committee can evaluate them. Both of you expressed 
them very well, as did the other witnesses.
    Professor Keith Kintigh, the Society for American 
Archaeology in Tempe, AZ is with us. Professor Kintigh, why 
don't you proceed with your testimony.

STATEMENT OF KEITH W. KINTIGH, SOCIETY FOR AMERICAN ARCHAEOLOGY

    Mr. Kintigh. Thank you, Mr. Chairman.
    The Society for American Archaeology thanks the committee 
for the opportunity to comment on the proposed amendment. 
Fifteen years ago, I appeared before this committee to present 
SAA's testimony on S. 1980, the bill that became NAGPRA. SAA 
represented the scientific community in shaping NAGPRA's 
compromise among Native Americans, including Mr. Echo-Hawk, 
museums and scientists. SAA helped form a coalition of 
scientific organizations and Native American groups that 
strongly supported NAGPRA's enactment.
    Since that time, SAA has closely monitored NAGPRA's 
implementation and consistently urges our 6,800 members always 
to work toward its effective implementation. We believe that 
any amendment should uphold NAGPRA's central principle that 
repatriation is a remedy provided to Indian tribes that are 
reasonably closely related to human remains or objects. Under 
NAGPRA, in most cases cultural affiliation is the legal 
standard for closeness of relationship that must be achieved.
    The proposed amendment would modify the definition of 
``Native American'' in response to judicial rulings that the 
statute requires that human remains bear some relationship to a 
presently existing tribe, people or culture in order to be 
considered Native American.
    In our amicus filing in the Kennewick case, SAA agreed with 
DOI's earlier position on the broader meaning of ``Native 
American,'' arguing that requiring demonstration of a 
relationship to modern Native Americans is contrary to the 
plain language of the statute and would absurdly exclude 
historically documented Indian tribes that have no present-day 
descendants.
    However, in that same amicus filing SAA argued, contrary to 
DOI's position, that Kennewick Man should not be repatriated to 
the claimant tribes because he did not meet the statutory 
standard of cultural affiliation. On this point, Judge Jelderks 
agreed, stating ``the Secretary's decision does not meet this 
standard.'' ``As a consequence,'' the judge continued, ``even 
if the Secretary's conclusion that the remains are Native 
American had been correct, the decision to award these remains 
to the tribal claimants could not stand.'' I continue to think 
that SAA got it right in its amicus brief.
    The proposed amendment would have the effect of reversing 
the court's interpretation, thereby restoring the status quo 
ante for the definition of ``Native American.'' The amendment 
would not affect the court's findings on cultural affiliation. 
The amendment thus would make NAGPRA's language consistent with 
what the Congress, SAA, NARF, and to our knowledge all the 
other involved parties understood ``Native American'' to mean 
back in 1990. I agree completely with Mr. Echo-Hawk that it was 
uncontroversial at that time.
    In our analysis that I will briefly outline, we indicate 
that the predictable effects of the amendment would be minor, 
in keeping with the committee's characterization of it as a 
technical amendment.
    For NAGPRA to apply, human remains or objects must satisfy 
the definition of ``Native American.'' However, that is only 
the first step. In most cases, repatriation under NAGPRA occurs 
only if there is also cultural affiliation, a relation of 
shared group identity with a present day Indian tribe. 
Culturally affiliated human remains or objects are a subset of 
the remains or objects that would meet the definition of 
``Native American'' either under the Kennewick court's 
interpretation or the proposed amendment.
    Thus, to the extent that repatriation is contingent on a 
showing of this more restrictive standard of cultural 
affiliation, the proposed definitional change would have 
absolutely no affect on the remains and objects that could be 
repatriated.
    In order to see the logical effects of the amendment, we 
must then look to three circumstances in which repatriation can 
occur in NAGPRA without a finding of cultural affiliation. 
First, cultural affiliation is not required for repatriation to 
lineal descendants. We take this to be unproblematic because 
any repatriation to lineal descendants is a reasonable 
disposition.
    Second, cultural affiliation is not required for 
repatriation of human remains or other cultural items found on 
Indian lands since NAGPRA's enactment. However, even in the 
absence of an amendment, the tribe controls the remains or 
objects under other law. This exception is therefore also 
unproblematic.
    Third, the proposed amendment would extend the possibility 
of repatriation to those ancient human remains or objects for 
which no relationship to a present day tribe can be shown if 
they were discovered since NAGPRA's enactment on Federal lands 
that are legally recognized as the aboriginal lands of a tribe.
    When NAGPRA's language was negotiated in 1990, SAA argued 
that the standard of cultural affiliation should also apply to 
these remains. However, as part of a compromise, SAA accepted 
the language that appears in the statute and is prepared to 
stand by it.
    In summary, consistent with our longstanding position on 
the meaning of ``Native American,'' the Society for American 
Archaeology supports the proposed amendment. Our analysis of 
its predictable effects suggests that the amendment would, in 
combination with responsible and even-handed regulations, serve 
to maintain NAGPRA's balance between the public interest in the 
advancement of science and the very real concerns of Native 
Americans.
    SAA is grateful for the balance shown by the committee as 
it addresses NAGPRA, and again thanks you for the opportunity 
to provide you with our perspective. We would be happy to help 
the committee in any way possible as it pursues this issue.
    [Prepared statement of Mr. Kintigh appears in appendix.]
    Senator Dorgan. Professor, thank you very much.
    Our final witness is Van Horn Diamond from Honolulu, HI. 
Mr. Diamond, thank you and you may proceed.

          STATEMENT OF VAN HORN DIAMOND, HONOLULU, HI

    Mr. Diamond. Aloha and thank you, Senator Dorgan, for this 
chance to talk with you about NAGPRA and the Native Hawaiian, 
specifically the need to further the enabling of the Native 
Hawaiian family, called Ohana, to meet its prime societal 
responsibility and family duty, the care for, custody and 
reverence to ancestral remains and artifacts.
    Please note this testimony is from the Diamond Ohana. We 
are recognized under NAGPRA as a Native Hawaiian organization. 
We do not speak for the Hawaiian people, nor are we experts to 
speak ex cathedra. But we have had interface with other Native 
Hawaiian organizations, especially families. Therefore, our 
remarks reflect our conversations with them, and to the extent 
applicable, our hands-on learning about NAGPRA and how it works 
in Hawaii as we observed and personally experienced.
    Before continuing, it is important for us to affirm our 
support for and endorsement of S. 536, section 108. The two 
amendments enables Native Americans ways to have standing and 
enhance further the connection to ancestral remains and 
artifacts. No scientific curiosity should have singular license 
to indigenous remains and artifacts. Not all knowledge resides 
in Western scientific methodologies, modalities and even 
eschatology.
    The Native Hawaiian family Ohana situation is somewhat 
similar to the Colville Tribes connection to the Kennewick Man, 
and the Fallon Paiute-Shoshone Tribe in Nevada to its 10,000 
year old man. Ancestral remains and certain artifacts were 
buried secretly to protect from and deter desecration both 
physical and spiritual.
    Consequently, it is the family's oral traditions, 
genealogy, history and geographic presence, including how a 
descendant is named which connects the present generation with 
its predecessors, especially our ancestors. But often, the 
specific tie as to who is buried and where they lay, these 
facts sometimes die with whomever it was passed on to in prior 
generations.
    Consequently, the lineal definition within NAGPRA's 
administration rules does not readily and most often not enable 
the Hawaiian family from achieving its lineal descendant 
status. The alternative is therefore the NAGPRA definition of 
the Native Hawaiian organization. But it is a catch-all 
definition, wherein all categories of Native Hawaiian 
organizations can be placed. Most are and were community-based 
nonprofit agencies. This exists because when NAGPRA came to be 
there was no Hawaiian Native government.
    The majority of the participating Native Hawaiian groups 
were not the Hawaiian family. But in the 2004 and 2004 
timeframe, this fact has changed. Families are now trying to 
assume and fulfill their responsibility, their duty. However, 
there are some community-based entities suggesting the 
restriction as to who is a Native Hawaiian organization to the 
disadvantage of the Native Hawaiian family. The consequence is 
no lineal descendant, no Native Hawaiian organization, 
therefore no family ability to participate.
    Our preference, therefore, is to recommend, if it is 
doable, to give the Native Hawaiian family its standing 
separate from the lineal descendants and Native Hawaiian 
organizations. If this cannot be, to ensure that under the 
Native Hawaiian organizations, the Native Hawaiian family 
standing is protected from excisement to fulfill their prime 
duty and responsibility.
    One thing that came to mind as I was listening to Mr. 
Bender is that under NAGPRA our experience is that prospective 
claimants, as well as those that are recognized, have the right 
to inspect the items. Clearly, the presumption then is that 
there is going to be confer and consultation with whomever is 
the repatriator. I would also think that under 106 there is a 
definition about culturally relevant communication. I would 
suggest to parties that want to have scientific inquiry that 
they affirm that by their participation and behavior.
    [Prepared statement of Mr. Diamond appears in appendix.]
    Senator Dorgan. Mr. Diamond, thank you very much.
    Mr. Diamond. Thank you.
    Senator Dorgan. The testimony that all of you have 
presented is very interesting testimony and has some conflict, 
as you have heard it. I think probably a starting point is that 
all of would agree that Indians, Alaska Natives, Native 
Hawaiians, and others have suffered great injustices at the 
hands of the Federal Government, Federal agencies, museums, and 
other institutions that have removed the remains of their 
ancestors. I recall some years ago being involved with respect 
to the Smithsonian that as warehousing massive amounts of 
Indian remains in their basements and their warehouses. I 
became very interested in that.
    I want to tell you just one other story of interest. It 
relates only tangentially to this. I was walking down in the 
hallway of this building about 4 years ago and I saw a 
historical document in a little display about Senate history. 
It was a historical document about something called the 
Congressional Cemetery, which really is not owned by or 
supported by the Congress, but it is called the Congressional 
Cemetery. It is not very far from this building.
    It said that there were Senators and Congressmen buried 
there from decades past in the past century. It also said there 
were some Indians buried there. I said to myself, let's find 
out if there are Indians from our region buried there and why 
and how it happened.
    So I had my staff do some research. And sure enough, there 
was a man named Scarlett Crow buried there. He is from the 
Sisseton-Wahpeton Tribe, which is partly in North Dakota. I 
decided to find out what had happened to Scarlett Crow. He came 
out to Washington, DC with I think six or eight other Indians 
from his tribe, I believe it was 1862, to negotiate a treaty. 
He was found dead under the Occoquan Bridge. The death 
certificate said suicide and they buried him over here in the 
Congressional Cemetery in a far corner.
    I got a copy of the Alexandria, VA police records and saw 
that when they investigated the death of Scarlett Crow, this 
fellow who was in Washington, DC from the Wahpeton-Sisseton 
Tribe in the 1860's, when they investigated his death, the 
police investigators said that he was said to have committed 
suicide by hanging, but in fact he was lying next to his robe 
that was carefully folded next to his body, and the branch from 
which he said he would have hung himself would not have held a 
6-year old child. These are the police investigators.
    It seems to me it was just a cursory review of whatever 
records were available, this man was killed, which probably was 
not too unusual back in the 1860's when people from tribes came 
here, and then he was put in a small grave over here. I 
notified the Sisseton-Wahpeton Tribe with all the relevant 
information about this man named Scarlett Crow who came to 
Washington, DC, I am sure with great intentions, with his 
tribal members, of negotiating a treaty with the Federal 
Government and ended up being killed under the Occoquan Bridge.
    It is very unlikely he committed suicide; very likely he 
was killed. And the investigation was stopped and they put 
suicide on the death certificate and buried him in a corner of 
the cemetery.
    So my acquaintance with all of these issues is not only 
going over to the Congressional Cemetery and investigating 
that, but working with the tribe to think through the issue of 
burial grounds and the building of a bridge, a whole range of 
issues, working with others in my service in both the House and 
the Senate with respect to the issue of the Smithsonian and 
other institutions that have picked up remains of Native 
Americans and warehoused them.
    This is a very emotional issue and it is a spiritual issue. 
I find it really intellectually interesting, obviously, to hear 
the different views today. It is difficult. It is not an easy 
issue to deal with because you are dealing with spiritual 
issues here.
    So let me ask the question, let me start with Ms. Barran 
and Mr. Bender. I assumed that you probably knew each other and 
were longstanding advocates on different sides of this issue. 
Ms. Barran, you expressed disagreement with Mr. Bender. Let me 
have Mr. Bender respond to your disagreement and then let's 
have a discussion about that.
    Mr. Bender.
    Mr. Bender. Yes; the reason, we have not met I think is 
because I have not been an advocate on this issue. My contact 
with it really stopped when the legislation was approved. I 
testified before the committee prior to the legislation's 
enactment in my capacity as a facilitator for national dialog. 
I have not been involved. My point here is that the Ninth 
Circuit decision is an erroneous construction of the statute as 
I understood it at the time it was enacted. The statute was a 
compromise, as everybody has said.
    A couple of things in response to what Ms. Barran said. 
Scientific people are not excluded from the process of deciding 
what should be done with unaffiliated remains. The review 
committee contains seven members. Three of them are Indians and 
three of them are nominated by museums and the scientific 
community. That is the way the scientific community is 
guaranteed a consultation with regard to remains that are not 
connected with a present day tribe. Those remains are to be 
disposed of in a way that the review committee says and the 
review committee has a very substantial scientific 
representation.
    But what the Ninth Circuit has done, and if you don't 
change the Ninth Circuit decision what is going to happen is 
not that scientists are going to be excluded, but that Indians 
are going to be excluded from the process because there are 
three Indians on that committee also. That is the chance of the 
Indian community to have some say in what should happen to 
these prehistoric remains that are not affiliated with any 
current tribe.
    If the Ninth Circuit decision is correct, Indians will not 
be involved in that process. The most important thing that 
NAGPRA did was to include Indians in the process. For example, 
when museums are told to do an inventory, this is the inventory 
section, Section 3003, they are told to do an inventory of 
Native American things and tell the tribes what they have.
    If unaffiliated remains that are unaffiliated with a 
current tribe are not Native American, they won't even tell the 
tribes they have them. That is wrong. That is exactly contrary 
to what everybody at the time wanted NAGPRA to do. It wanted 
NAGPRA to include Indians in the process, not to exclude them.
    So that is the basic problem with the Ninth Circuit 
decision. Reversing the Ninth Circuit decision does not exclude 
scientists because they are included in the review committee.
    Senator Dorgan. Ms. Barran.
    Ms. Barran. As you can see, I am ready to go here. Let me 
tell you what that guarantee meant to us 9 years ago. I think 
that will give you a sense of why the Ninth Circuit was 
outraged, why the Federal District Court for the District of 
Oregon was outraged, and why that court ultimately concluded 
that the Government had acted in bad faith and was consistently 
biased.
    Nine years ago, on July 26, the Kennewick Man skeleton was 
discovered. His remains were collected by an anthropologist, 
Dr. Chatters. Dr. Chatters initially thought that the remains 
may very well have been a Caucasian settler of the area until 
he saw the stone spear point in the hip bone of the skeleton, 
and until an early radio carbon dating showed that he was 
incredibly old, 9,000 years old. Dr. Chatters was in immediate 
consultation with Dr. Owsley at the Smithsonian, who is one of 
the world's experts in these ancient remains.
    The Army Corps of Engineers got wind of it, learned of the 
discovery because Dr. Chatters had to obtain a permit to 
excavate the remains. They seized the skeleton. From that point 
forward, the Government clamped down its lid on everything that 
was happening. Our clients did not march into court just 
because they wanted to get themselves involved in an almost 
decade-long legal battle, but they started writing letters 
saying, let me explain what this means; let me tell you what it 
means to find an almost complete 9,000 year old skeleton in 
this country.
    Not only were they rebuffed, they barely had an 
acknowledgment that they had even written. They attempted to 
discuss this issue with the Government, but were closed out. 
Then the Army Corps of Engineers started creating the documents 
that we later saw as the administrative record. I am going to 
quote directly from the Army Corps of Engineers: ``I told 
him,'' referring to one of the tribal representatives, ``we 
will do what the tribes decide to do with the remains, but we 
will not involve ourselves in that decision. I assured him that 
we were working under the assumption the decision will be what 
the Umatilla have asked for.''
    One of the claims that we brought ultimately in the 
Kennewick Man litigation was a denial of due process to our 
clients. One of the issues in the court decision was a finding 
by the Federal District Court at the trial court level and 
later affirmed by the Ninth Circuit, not that it was wrong to 
consult with the tribes, but that it was wrong to close us out 
of the process because the skeleton was not Native American to 
begin with. This is an ancient person from possibly Polynesia 
who came to these shores. He is not ancestral to current day 
tribes.
    So when we finally concluded at the trial court level, sort 
of the middle part of this process, the trial court actually 
wrote that the administrative record from these Government 
agencies, the Army Corps of Engineers and subsequently the 
Department of the Interior, establishes that the agency was 
consistently biased, acted with obvious disregard for even the 
appearance of neutrality, and predetermined the outcome of 
critical decisions, including the ultimate disposition of the 
remains.
    They jumped to a decision without even knowing what they 
had. Our battle with the government has never been over an 
effort to exclude the tribes from this process. But we had an 
anthropological treasure found in this country and it was going 
to go back into the ground without ever allowing us to teach 
anything.
    Senator Dorgan. Ms. Barran, I do not want you to re-argue 
the case. I appreciate your comments.
    Let me ask Mr. Echo-Hawk, and I think from what I have 
learned from the witnesses, including Ms. Barran, I think that 
there is a default position assumed in some of the testimony 
here that human remains should be, shall be or will be 
considered tribal, indigenous people as a kind of default 
position. If that is the case, especially with the proposed 
amendment, if that is the case, then if tomorrow someone finds 
the remains of a person that was judged to be living 12,000 
years ago, a scientific treasure trove of information about 
human life then, would because of cultural issues and other 
concerns, would there be a preclusion of the study of those 
remains?
    Mr. Echo-Hawk. Not necessarily, Senator. If the amendment 
goes forward to preserve the original intent of Congress, it 
would simply mean that person would be deemed to be a Native 
American and subject to the provisions of the act, the input, 
the consultation, the protective procedures. It would not 
mandate his repatriation at all because any tribal claimant 
would have to establish that it is culturally affiliated with 
those remains.
    Senator Dorgan. Can I just stop you at that moment? Just 
for a second, save your thought.
    Ms. Barran is saying that in fact consultation was 
prohibited in the scientific direction by the government 
agencies. You support consultation in both directions, I 
assume, and so does Mr. Bender. Is that correct?
    Mr. Bender. Yes.
    Senator Dorgan. Let Mr. Echo-Hawk finish. I just wanted to 
make that point. The consultation issue is really important in 
this discussion.
    Mr. Echo-Hawk. Exactly. I think it is built into the act on 
all sides, and no one is intended to be excluded.
    Now, I cannot comment on the facts of the particular 
Kennewick case, whether the particular Federal officials may 
have abused or acted improperly with regard to the particular 
facts of that case. Their conduct, however, has nothing to do 
with the statute or its coverage. And I am not here today to 
overturn the outcome of that case, because the court did hold 
that the tribal claimants were unable to prove their cultural 
affiliation with those remains, and we are not here today to 
overturn that outcome, but merely to restore the coverage that 
everyone thought we had on the statute.
    That coverage in 15 years since the date of NAGPRA, has not 
emptied our universities. It has not emptied the collections of 
human remains. For example, you mentioned earlier that at the 
Smithsonian, in 1989, they had 18,000 remains. Congress enacted 
very similar repatriation provisions, requiring that those that 
any culturally affiliated remains be repatriated. Well, here we 
are 15 years later and there are still 15,000 remains in the 
Smithsonian. So it has not emptied the collection.
    My fundamental problem with some of what has been said 
today is I think that the scientific community is overstating 
some of their fears and concerns, because we simply have not 
had that experience in the United States of having absurd 
outcomes under the statute and we have not emptied, like there 
are hundreds of thousands of remains that are still on shelves 
under the statute.
    So I think that many of these concerns are overstated and 
not reflected in our actual experience in 15 years.
    Senator Dorgan. Ms. Lambert, if I might ask you if or was, 
two words, were amended to the statute, is it your contention 
that that would largely preclude you from being consulted, from 
being a part of this process? Is that what your testimony is?
    Ms. Lambert. No.
    Senator Dorgan. Okay. Explain it if you would.
    Ms. Lambert. In fact, we really have no problem with the 
amendment, depending on the wording of the regulations for 
culturally unidentified human remains. I think one of the 
interesting things about the Ninth Circuit Court decision is 
that it showed that a commonsense interpretation is not 
necessarily the same as a legal interpretation. We certainly 
agree with the commonsense interpretation, and if you look at 
the literature by those of us who study the past here, you will 
find ``Native American'' everywhere. And so I do not think you 
would find disagreement at that level.
    However, when you change statutory language, you change 
legal ramifications and what we are saying is that we cannot 
really assess what this minor little word change is going to do 
without being able to see what the regulations are for 
culturally unidentifiable human remains, because they do change 
the purview of NAGPRA.
    So on the one hand, we support the amendment and we agree 
and we acknowledge that it was a commonsense understanding at 
the time and everybody agreed about it. However, because the 
Ninth Circuit Court decision has pointed out the difference 
between that sort of common understanding and legislative 
language and legal meaning, we would like to ask that this 
amendment be postponed until we can see what the actual on the 
ground ramifications are going to be, and we cannot see that 
until the regulations are out. They should be out soon.
    Senator Dorgan. Who knows where the remains of the 
Kennewick Man are now? Who has possession of those remains?
    Ms. Barran. They are being curated and are presently stored 
at the Burke Museum at the University of Washington. They are 
under the control of the Army Corps of Engineers, which was the 
agency that had responsibility for the Federal land where the 
remains were found. They were found sort of partially submerged 
in the Columbia River, and that is land under the authority of 
the Army Corps of Engineers. So the Army Corps has authority 
over them.
    Senator Dorgan. Mr. Bender.
    Mr. Bender. Senator, could I say something about the timing 
that Ms. Lambert is talking about? If the Ninth Circuit's 
interpretation of the statute were to stand, those regulations 
could not be promulgated because if the Ninth Circuit's 
interpretation stands, remains that are not affiliated with a 
present tribe are not Native American materials, and the review 
committee and the regulations that the department is supposed 
to adopt are regulations only for Native American things.
    So I understand the feeling that you do not want to do 
things unless you know what the regulations are going to have, 
but I think the right thing to do is to change the statute back 
to its original intention; let the regulations be promulgated 
and consult in the promulgation, because if you do not do that, 
then the promulgation of regulations would be ultra vires 
because it would be about stuff that is not Native American. 
The committee's authority is only to deal with Native American 
things.
    Senator Dorgan. Well, we have some other questions. Dr. 
Kintigh, I appreciate your being with us today. I understand 
you were involved, or at least the American Association of 
Physical Anthropologists, the Society for American Archaeology, 
they were both involved in the discussions that led to the 
enactment of NAGPRA. I assume there was some belief then about 
what the specific language meant or did not mean, particularly 
with respect to the term ``Native Americans.''
    Was it your sense that they were only referring at that 
point to presently existing tribes?
    Mr. Kintigh. No; I think I agree with Mr. Echo-Hawk that at 
the time everyone took the definition of ``Native American'' to 
be self-evident. It was essentially what DOI argued in the 
Kennewick case. It was people we think of, just loosely 
speaking, people we think of as Indians today and then pre-
Colombian all the way back. I think that was the sort of common 
sense understanding of ``Native American'' at the time. I think 
that is what we thought. As far as I know, that is what 
Congress and everybody else thought.
    However, as other speakers have also pointed out, the 
notion that there is a separation between what is considered to 
be Native American and what is repatriatable under the Act, and 
what is repatriatable largely depends upon this definition of 
``cultural affiliation.'' So much of the discussion, including 
ones I had directly with Mr. Echo-Hawk, had to do very much 
with setting that standard for cultural affiliation.
    I think what Congress' intent was to deal with those human 
remains and cultural items that are reasonably closely related 
to present day tribes, but it did that at the stage of cultural 
affiliation, not at the stage of deciding what is Native 
American.
    I agree with Mr. Bender that it would affect this whole 
consultation process and that certainly a benefit of NAGPRA and 
certainly an intent of NAGPRA was to enhance that consultation. 
I think it has been quite successful.
    Senator Dorgan. Let me say this has been a really 
interesting discussion. I did want to point out, Ken Davis is 
over here, the chairman of the Turtle Mountain Tribe in North 
Dakota. Chairman, thank you for being with us today.
    This has been an interesting discussion and one of great 
importance to a lot of people. We understand that and no one 
would minimize the importance of repatriation of human remains. 
I have talked to tribal leaders at great length about this. 
There is a backdrop here in which this discussion takes place, 
and part of it is described by Mr. Echo-Hawk. There were times 
in this country when Indian bodies were collected on the 
battlefield and sent back to Washington for study, and then end 
up as a set of bones somewhere in a basement. That is a pretty 
shameful thing to have had happen.
    I was involved with respect to the repatriation legislation 
that Mr. Echo-Hawk described a bit ago. I was involved in that 
precisely because this country did some things that were very 
shameful and we needed to make amends for that and try to 
repatriate the remains to those tribes. I regret it has not 
gone quite as smoothly or as quickly as many of us would have 
liked.
    Chairman McCain, as I indicated to you, went down to the 
Commerce Committee to offer an amendment. As is always the case 
wherever Chairman McCain is, controversy follows. [Laughter.]
    He seldom ever offers milquetoast amendments, so my guess 
is that his amendment has provoked a substantial amount of 
discussion. I, by the way, have left my proxy to vote against 
Senator McCain's amendment because we happen to disagree on 
this Amtrak issue. [Laughter.]
    But I am going to be offering an amendment on another bill 
that is being marked-up just following Senator McCain's 
amendment. My expectation and his was that he was going to be 
back before we completed this hearing, but obviously this 
discussion of his is taking more time in the Commerce Committee 
than he expected.
    Let me on behalf of our committee pledge to you that we 
intend to look seriously at all of these issues. We thank all 
of you for traveling, in many cases great distances, to come to 
testify before this committee. The hearing is a hearing we held 
because we think 2 words or 100 words, this is important. Words 
have meaning and consequence.
    This is not just some academic or ethereal debate. It is a 
debate that has great spiritual and cultural and historical 
significance for the first Americans. It also has significance 
for our scientific community, and that is why we wanted to have 
an opportunity to have an exchange of views.
    I thank you very much for being here today and this hearing 
is adjourned.
    [Whereupon, at 10:55 a.m., the committee was adjourned, to 
reconvene at the call of the Chair.]


=======================================================================


                            A P P E N D I X

                              ----------                              


              Additional Material Submitted for the Record

=======================================================================


 Prepared Statement of Hon. Daniel K. Inouye, U.S. Senator from Hawaii

    Thank you Mr. Chairman. I commend the committee for holding this 
hearing on this very important issue for all Native Americans.
    Around 1987, I learned that museums and scientific institutions 
throughout this land had thousands of Native American human remains and 
sacred objects in their collections that were being held for the 
purposes of scientific research, all without the knowledge and consent 
of Native Americans. In order to address this atrocious situation, 
facilitated dialog was initiated between Native Americans, museums, and 
scientific institutions.
    Eventually consensus was reached, and in 1990 the Native American 
Graves Protection and Repatriation Act [NAGPRA] was enacted into law to 
provide that ancestral remains, funerary objects, sacred items, and 
objects of cultural patrimony be repatriated to Indian tribes, Native 
Hawaiian organizations, and individual Native American descendants.
    This act has empowered Native Americans by mandating involvement in 
both the discovery and repatriation process and by requiring tribal 
notification, consultation and inclusion in the decisionmaking process. 
This inclusion fosters respect for Native people, Native traditions, 
and Native belief systems and protects the dignity of the human body 
after death in congruence with local Native practices.
    Controversy has arisen surrounding the so-called ``Kennewick Man.'' 
Whose remains were found in Washington State and are now available for 
scientific examination, due to the fact that a direct cultural 
affiliation could not be established. Even though direct cultural 
affiliation could not be established, that does not mean that he is, 
and was, not Native American.
    Native Americans evolved in the same manner that other people 
evolved. Although some tribes were forcefully moved from their lands, 
other tribes remain in the same area that they have historically been 
located. Their oral tradition evidences this fact.
    Similarly, in Hawaii, remains are often identified through oral 
traditions, history, and geographic location. It should also be known 
that iwi or bones and remains of a person are very sacred in Hawaiian 
culture, so sacred that some of them have been secretly buried to 
protect them from desecration. I would like extend a special welcome 
Van Horn Diamond who will be testifying to that effect today.
    I want to thank Chairman McCain and Vice Chairman Dorgan for 
allowing Mr. Diamond to testify today. This is an important issue for 
him--so important, that when he was invited 2 weeks ago, he immediately 
decided to postpone serious medical treatment in order to be here 
today. Mr. Diamond thank you for coming today.
    I look forward to the testimony today, and working with members of 
the Indian Affairs Committee to devise a policy that reflects the 
concerns of Native people as well as the concerns of other involved 
groups.
    Once again, thank you Mr. Chairman.

                                 ______
                                 

  Prepared Statement of Mervin Wright, Jr., Member, National Working 
            Group on Culturally Unidentifiable Human Remains

    My name is Mervin Wright, Jr., a GIS Specialist for the Pyramid 
Lake Paiute Tribe of Nevada and I am a member of the National Working 
Group on Native American Culturally Unidentifiable Human Remains.
    Thank you for the opportunity to submit written testimony for this 
Oversight Hearing on the Native American Graves Protection and 
Repatriation Act [NAGPRA]. I commend the committee for its attention to 
the concerns of Native American People about section 108 of NAGPRA, the 
definition for Native American. NAGPRA's statutory definition was re-
defined restrictively in the Ninth Circuit Court ruling in Bonnichen v. 
United States, 357 F.3d 962 (2004). The impact of the ruling undermines 
indigenous existence on this land prior to the United States becoming a 
country.
    As a field practitioner of repatriation, I know that certain 
provisions of NAGPRA are meeting the intentions of Congress when it 
enacted NAGPRA into law. The Ninth Circuit Bonnichsen decision turned 
the Congressional intent of NAGPRA on its head and ignored the 
legislative intent of the definition. The Court inserted its own intent 
into the law by rewriting it. Many scientists working in the field of 
repatriation see the Bonnichsen ruling as a victory because now the 
NAGPRA definition of Native American does not have to include anything 
older than 500 years.
    When NAGPRA began to be implemented it presented a new set of 
circumstances for tribes, agency officials, museum officials, and 
scientists. Scientists and agency officials were not fully prepared for 
having the obligation to return human remains that were either lawfully 
or unlawfully excavated. Tribes were also placed in the precarious 
situation of having to perform an obligation for actions never imagined 
by cultural and traditional rules. Nevertheless, tribes understand the 
rightful place of our dead and there is respect for the sanctity of the 
ancient burial rites of our ancestors. When scientists realized that 
they may not be able to test their theories on ancestral Indian human 
remains, they searched for ways to prevent repatriation. One way was to 
use the affiliation procedures in NAGPRA, along with their theoretical 
hypotheses, and to define ancient indigenous existence they create 
astounding conclusions for what they think.
    The definition of ``Native American'' must be clearly 
understandable so that NAGPRA is correctly interpreted by everyone 
involved with repatriation efforts. History tells that canons of 
statutory construction require courts to construe statutes broadly for 
the benefit of Indian tribes. Because courts are normally the final 
option for dispute resolution, courts should not have the authority to 
make judgments about what Native people see as the natural laws of 
creation. Regardless of who has authority over Federal ``property,'' 
the application of the definition must be based on ultimate respect for 
a living being, a life before ours, the continuity of a culture, and a 
matter of understanding that human beings are created equally and 
should have undisturbed internment.
    Bonnichsen is not an isolated situation when it comes to 
interpreting the meaning of Native American. Applying the definition is 
directly connected to the determination of cultural affiliation. In at 
least two cases in Nevada, ancient human remains were involved in ``new 
scientific studies'' without the consent of the two affected tribes. In 
1994, 29 sets of human remains were taken from the Nevada State Museum 
[NSM] to the University of California at Los Angeles for radiocarbon 
testing. Once the ages of the remains were determined, the two oldest 
sets of human remains were automatically categorized as 
``unaffiliated.'' In 1996, the NSM and the Nevada Bureau of Land 
Management [BLM] convened a meeting to obtain tribal consent for such 
findings. After conducting their destructive analyses, they reached 
their troubling conclusions that somehow these human remains were 
another ``people'' and thus not affiliated. Physical sciences such as 
geology and archaeology tell another story of human existence and 
certain evolutionary changes over time. Repatriations have occurred for 
human remains that range in age from historic to prehistoric. Some 
agency and museum officials have reasonably come to accept the 
traditional knowledge and oral histories of Native Indian People.
    On the other hand, tribes have suffered setbacks at the hands of 
scientists who have exaggerated theories and used their interpretation 
of NAGPRA to deny repatriation of certain human remains. A clear 
definition of Native American will enable a fair application of the 
law, and there will be a clearer understanding of prior existence for 
the history of this country. Tribes have done all they can to avoid 
confrontation on these issues. The matter of repatriating human remains 
is not instituted, nor is it provoked by Indigenous People.
    Unfortunately, because scientists do not know as much as they want 
to know, human remains are categorized as ``culturally unidentifiable'' 
to prevent repatriation and to support their continued career 
endeavors. The scientific community does not realize that their 
theories will never tell the complete story of evolution. Some of their 
unanswered questions will remain absolutely unsolved forever. 
Theoretical conclusions will be as close as they will get to 
discovering the truth of ancient life on the North American Continent. 
Science is not absolute. Existence of human life for at least 40,000 
years on this continent supports the traditional knowledge of 
indigenous People. There have been challenges to the NAGPRA, but only 
to the extent that science cannot agree with the definition and the 
conditional requirement imposed by the law for repatriation.
    In light of Bearing's theory, ancient civilizations date farther 
back into time as sites are discovered in the southern hemisphere, in 
Central America and South America. As science attempts to discover the 
origins of man, it cannot apply racial tendencies through technology, 
there is no such thing as racial science. To believe a pure race for 
the colors of man-kind originated from Africa, each race must embrace 
the fundamental principle supporting evolutionary understandings. 
Science has conflicted with moral understandings of traditional and 
indigenous populations around the world. It is only when a People agree 
with scientific application of scientific theories do scientists set 
out with their ``discovery.'' It is an exaggeration of the truth.
    The Native people of this land are connected to it, and it is our 
home no matter who occupies it. Indian people have never been told that 
we are no longer care-takers of the land. We have never been told in 
the sense outside from or from above the written laws of man. The 
belief and faith system of traditional and cultural knowledge rests in 
the hands of our Creator, all mighty God.

[GRAPHIC] [TIFF OMITTED] T2885.001

[GRAPHIC] [TIFF OMITTED] T2885.002

[GRAPHIC] [TIFF OMITTED] T2885.003

[GRAPHIC] [TIFF OMITTED] T2885.004

[GRAPHIC] [TIFF OMITTED] T2885.005

[GRAPHIC] [TIFF OMITTED] T2885.006

[GRAPHIC] [TIFF OMITTED] T2885.007

[GRAPHIC] [TIFF OMITTED] T2885.008

[GRAPHIC] [TIFF OMITTED] T2885.009

[GRAPHIC] [TIFF OMITTED] T2885.010

[GRAPHIC] [TIFF OMITTED] T2885.011

[GRAPHIC] [TIFF OMITTED] T2885.012

[GRAPHIC] [TIFF OMITTED] T2885.013

[GRAPHIC] [TIFF OMITTED] T2885.014

[GRAPHIC] [TIFF OMITTED] T2885.015

[GRAPHIC] [TIFF OMITTED] T2885.016

[GRAPHIC] [TIFF OMITTED] T2885.017

[GRAPHIC] [TIFF OMITTED] T2885.018

[GRAPHIC] [TIFF OMITTED] T2885.019

[GRAPHIC] [TIFF OMITTED] T2885.020

[GRAPHIC] [TIFF OMITTED] T2885.021

[GRAPHIC] [TIFF OMITTED] T2885.022

[GRAPHIC] [TIFF OMITTED] T2885.023

[GRAPHIC] [TIFF OMITTED] T2885.024

[GRAPHIC] [TIFF OMITTED] T2885.025

[GRAPHIC] [TIFF OMITTED] T2885.026

[GRAPHIC] [TIFF OMITTED] T2885.027

[GRAPHIC] [TIFF OMITTED] T2885.028

[GRAPHIC] [TIFF OMITTED] T2885.029

[GRAPHIC] [TIFF OMITTED] T2885.030

[GRAPHIC] [TIFF OMITTED] T2885.031

[GRAPHIC] [TIFF OMITTED] T2885.032

[GRAPHIC] [TIFF OMITTED] T2885.033

[GRAPHIC] [TIFF OMITTED] T2885.034

[GRAPHIC] [TIFF OMITTED] T2885.035

[GRAPHIC] [TIFF OMITTED] T2885.036

[GRAPHIC] [TIFF OMITTED] T2885.037

[GRAPHIC] [TIFF OMITTED] T2885.038

[GRAPHIC] [TIFF OMITTED] T2885.039

[GRAPHIC] [TIFF OMITTED] T2885.040

[GRAPHIC] [TIFF OMITTED] T2885.041

[GRAPHIC] [TIFF OMITTED] T2885.042

[GRAPHIC] [TIFF OMITTED] T2885.043

[GRAPHIC] [TIFF OMITTED] T2885.044

[GRAPHIC] [TIFF OMITTED] T2885.045

[GRAPHIC] [TIFF OMITTED] T2885.046

[GRAPHIC] [TIFF OMITTED] T2885.047

[GRAPHIC] [TIFF OMITTED] T2885.048

[GRAPHIC] [TIFF OMITTED] T2885.049

[GRAPHIC] [TIFF OMITTED] T2885.050

[GRAPHIC] [TIFF OMITTED] T2885.051

[GRAPHIC] [TIFF OMITTED] T2885.052

[GRAPHIC] [TIFF OMITTED] T2885.053

[GRAPHIC] [TIFF OMITTED] T2885.054

[GRAPHIC] [TIFF OMITTED] T2885.055

[GRAPHIC] [TIFF OMITTED] T2885.056

[GRAPHIC] [TIFF OMITTED] T2885.057

[GRAPHIC] [TIFF OMITTED] T2885.058

[GRAPHIC] [TIFF OMITTED] T2885.059

[GRAPHIC] [TIFF OMITTED] T2885.060

[GRAPHIC] [TIFF OMITTED] T2885.061

[GRAPHIC] [TIFF OMITTED] T2885.062

[GRAPHIC] [TIFF OMITTED] T2885.063

[GRAPHIC] [TIFF OMITTED] T2885.064

[GRAPHIC] [TIFF OMITTED] T2885.065

[GRAPHIC] [TIFF OMITTED] T2885.066

[GRAPHIC] [TIFF OMITTED] T2885.067

[GRAPHIC] [TIFF OMITTED] T2885.068

[GRAPHIC] [TIFF OMITTED] T2885.069

[GRAPHIC] [TIFF OMITTED] T2885.070

[GRAPHIC] [TIFF OMITTED] T2885.071

[GRAPHIC] [TIFF OMITTED] T2885.072

[GRAPHIC] [TIFF OMITTED] T2885.073

[GRAPHIC] [TIFF OMITTED] T2885.074

[GRAPHIC] [TIFF OMITTED] T2885.075

[GRAPHIC] [TIFF OMITTED] T2885.076

[GRAPHIC] [TIFF OMITTED] T2885.077

[GRAPHIC] [TIFF OMITTED] T2885.078

[GRAPHIC] [TIFF OMITTED] T2885.079

[GRAPHIC] [TIFF OMITTED] T2885.080

[GRAPHIC] [TIFF OMITTED] T2885.081

[GRAPHIC] [TIFF OMITTED] T2885.082

[GRAPHIC] [TIFF OMITTED] T2885.083

[GRAPHIC] [TIFF OMITTED] T2885.084

[GRAPHIC] [TIFF OMITTED] T2885.085

[GRAPHIC] [TIFF OMITTED] T2885.086

[GRAPHIC] [TIFF OMITTED] T2885.087

[GRAPHIC] [TIFF OMITTED] T2885.088

[GRAPHIC] [TIFF OMITTED] T2885.089

[GRAPHIC] [TIFF OMITTED] T2885.090

[GRAPHIC] [TIFF OMITTED] T2885.091

[GRAPHIC] [TIFF OMITTED] T2885.092

[GRAPHIC] [TIFF OMITTED] T2885.093

[GRAPHIC] [TIFF OMITTED] T2885.094

[GRAPHIC] [TIFF OMITTED] T2885.095

[GRAPHIC] [TIFF OMITTED] T2885.235

[GRAPHIC] [TIFF OMITTED] T2885.236

[GRAPHIC] [TIFF OMITTED] T2885.237

[GRAPHIC] [TIFF OMITTED] T2885.238

[GRAPHIC] [TIFF OMITTED] T2885.096

[GRAPHIC] [TIFF OMITTED] T2885.097

[GRAPHIC] [TIFF OMITTED] T2885.098

[GRAPHIC] [TIFF OMITTED] T2885.099

[GRAPHIC] [TIFF OMITTED] T2885.100

[GRAPHIC] [TIFF OMITTED] T2885.101

[GRAPHIC] [TIFF OMITTED] T2885.102

[GRAPHIC] [TIFF OMITTED] T2885.103

[GRAPHIC] [TIFF OMITTED] T2885.104

[GRAPHIC] [TIFF OMITTED] T2885.105

[GRAPHIC] [TIFF OMITTED] T2885.106

[GRAPHIC] [TIFF OMITTED] T2885.107

[GRAPHIC] [TIFF OMITTED] T2885.108

[GRAPHIC] [TIFF OMITTED] T2885.109

[GRAPHIC] [TIFF OMITTED] T2885.110

[GRAPHIC] [TIFF OMITTED] T2885.111

[GRAPHIC] [TIFF OMITTED] T2885.121

[GRAPHIC] [TIFF OMITTED] T2885.122

[GRAPHIC] [TIFF OMITTED] T2885.123

[GRAPHIC] [TIFF OMITTED] T2885.124

[GRAPHIC] [TIFF OMITTED] T2885.125

[GRAPHIC] [TIFF OMITTED] T2885.126

[GRAPHIC] [TIFF OMITTED] T2885.127

[GRAPHIC] [TIFF OMITTED] T2885.128

[GRAPHIC] [TIFF OMITTED] T2885.129

[GRAPHIC] [TIFF OMITTED] T2885.130

[GRAPHIC] [TIFF OMITTED] T2885.131

[GRAPHIC] [TIFF OMITTED] T2885.132

[GRAPHIC] [TIFF OMITTED] T2885.133

[GRAPHIC] [TIFF OMITTED] T2885.134

[GRAPHIC] [TIFF OMITTED] T2885.135

[GRAPHIC] [TIFF OMITTED] T2885.136

[GRAPHIC] [TIFF OMITTED] T2885.137

[GRAPHIC] [TIFF OMITTED] T2885.138

[GRAPHIC] [TIFF OMITTED] T2885.139

[GRAPHIC] [TIFF OMITTED] T2885.140

[GRAPHIC] [TIFF OMITTED] T2885.141

[GRAPHIC] [TIFF OMITTED] T2885.142

[GRAPHIC] [TIFF OMITTED] T2885.143

[GRAPHIC] [TIFF OMITTED] T2885.144

[GRAPHIC] [TIFF OMITTED] T2885.145

[GRAPHIC] [TIFF OMITTED] T2885.146

[GRAPHIC] [TIFF OMITTED] T2885.147

[GRAPHIC] [TIFF OMITTED] T2885.148

[GRAPHIC] [TIFF OMITTED] T2885.149

[GRAPHIC] [TIFF OMITTED] T2885.150

[GRAPHIC] [TIFF OMITTED] T2885.151

[GRAPHIC] [TIFF OMITTED] T2885.152

[GRAPHIC] [TIFF OMITTED] T2885.153

[GRAPHIC] [TIFF OMITTED] T2885.154

[GRAPHIC] [TIFF OMITTED] T2885.155

[GRAPHIC] [TIFF OMITTED] T2885.156

[GRAPHIC] [TIFF OMITTED] T2885.157

[GRAPHIC] [TIFF OMITTED] T2885.158

[GRAPHIC] [TIFF OMITTED] T2885.159

[GRAPHIC] [TIFF OMITTED] T2885.160

[GRAPHIC] [TIFF OMITTED] T2885.161

[GRAPHIC] [TIFF OMITTED] T2885.162

[GRAPHIC] [TIFF OMITTED] T2885.163

[GRAPHIC] [TIFF OMITTED] T2885.164

[GRAPHIC] [TIFF OMITTED] T2885.165

[GRAPHIC] [TIFF OMITTED] T2885.166

[GRAPHIC] [TIFF OMITTED] T2885.167

[GRAPHIC] [TIFF OMITTED] T2885.168

[GRAPHIC] [TIFF OMITTED] T2885.169

[GRAPHIC] [TIFF OMITTED] T2885.170

[GRAPHIC] [TIFF OMITTED] T2885.171

[GRAPHIC] [TIFF OMITTED] T2885.172

[GRAPHIC] [TIFF OMITTED] T2885.173

[GRAPHIC] [TIFF OMITTED] T2885.174

[GRAPHIC] [TIFF OMITTED] T2885.175

[GRAPHIC] [TIFF OMITTED] T2885.176

[GRAPHIC] [TIFF OMITTED] T2885.177

[GRAPHIC] [TIFF OMITTED] T2885.178

[GRAPHIC] [TIFF OMITTED] T2885.179

[GRAPHIC] [TIFF OMITTED] T2885.180

[GRAPHIC] [TIFF OMITTED] T2885.181

[GRAPHIC] [TIFF OMITTED] T2885.182

[GRAPHIC] [TIFF OMITTED] T2885.183

[GRAPHIC] [TIFF OMITTED] T2885.184

[GRAPHIC] [TIFF OMITTED] T2885.185

[GRAPHIC] [TIFF OMITTED] T2885.186

[GRAPHIC] [TIFF OMITTED] T2885.187

[GRAPHIC] [TIFF OMITTED] T2885.188

[GRAPHIC] [TIFF OMITTED] T2885.189

[GRAPHIC] [TIFF OMITTED] T2885.190

[GRAPHIC] [TIFF OMITTED] T2885.191

[GRAPHIC] [TIFF OMITTED] T2885.192

[GRAPHIC] [TIFF OMITTED] T2885.193

[GRAPHIC] [TIFF OMITTED] T2885.194

[GRAPHIC] [TIFF OMITTED] T2885.195

[GRAPHIC] [TIFF OMITTED] T2885.196

[GRAPHIC] [TIFF OMITTED] T2885.197

[GRAPHIC] [TIFF OMITTED] T2885.198

[GRAPHIC] [TIFF OMITTED] T2885.199

[GRAPHIC] [TIFF OMITTED] T2885.200

[GRAPHIC] [TIFF OMITTED] T2885.201

[GRAPHIC] [TIFF OMITTED] T2885.202

[GRAPHIC] [TIFF OMITTED] T2885.203

[GRAPHIC] [TIFF OMITTED] T2885.204

[GRAPHIC] [TIFF OMITTED] T2885.205

[GRAPHIC] [TIFF OMITTED] T2885.206

[GRAPHIC] [TIFF OMITTED] T2885.207

[GRAPHIC] [TIFF OMITTED] T2885.208

[GRAPHIC] [TIFF OMITTED] T2885.209

[GRAPHIC] [TIFF OMITTED] T2885.210

[GRAPHIC] [TIFF OMITTED] T2885.211

[GRAPHIC] [TIFF OMITTED] T2885.212

[GRAPHIC] [TIFF OMITTED] T2885.213

[GRAPHIC] [TIFF OMITTED] T2885.214

[GRAPHIC] [TIFF OMITTED] T2885.215

[GRAPHIC] [TIFF OMITTED] T2885.216

[GRAPHIC] [TIFF OMITTED] T2885.217

[GRAPHIC] [TIFF OMITTED] T2885.218

[GRAPHIC] [TIFF OMITTED] T2885.224

[GRAPHIC] [TIFF OMITTED] T2885.225

[GRAPHIC] [TIFF OMITTED] T2885.226

[GRAPHIC] [TIFF OMITTED] T2885.227

[GRAPHIC] [TIFF OMITTED] T2885.233

[GRAPHIC] [TIFF OMITTED] T2885.234

                                 
