[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
_____________________________________________________________________________
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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
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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
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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.]
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A P P E N D I X
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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.
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