[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]




                        NATIVE AMERICAN GRAVES
                            PROTECTION AND
                       REPATRIATION ACT (NAGPRA)

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

                           OVERSIGHT HEARING

                               before the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                       Wednesday, October 7, 2009

                               __________

                           Serial No. 111-38

                               __________

       Printed for the use of the Committee on Natural Resources



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20402-0001







                     COMMITTEE ON NATURAL RESOURCES

              NICK J. RAHALL, II, West Virginia, Chairman
          DOC HASTINGS, Washington, Ranking Republican Member

Dale E. Kildee, Michigan             Don Young, Alaska
Eni F.H. Faleomavaega, American      Elton Gallegly, California
    Samoa                            John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii             Jeff Flake, Arizona
Frank Pallone, Jr., New Jersey       Henry E. Brown, Jr., South 
Grace F. Napolitano, California          Carolina
Rush D. Holt, New Jersey             Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona            Louie Gohmert, Texas
Madeleine Z. Bordallo, Guam          Rob Bishop, Utah
Jim Costa, California                Bill Shuster, Pennsylvania
Dan Boren, Oklahoma                  Doug Lamborn, Colorado
Gregorio Sablan, Northern Marianas   Adrian Smith, Nebraska
Martin T. Heinrich, New Mexico       Robert J. Wittman, Virginia
George Miller, California            Paul C. Broun, Georgia
Edward J. Markey, Massachusetts      John Fleming, Louisiana
Peter A. DeFazio, Oregon             Mike Coffman, Colorado
Maurice D. Hinchey, New York         Jason Chaffetz, Utah
Donna M. Christensen, Virgin         Cynthia M. Lummis, Wyoming
    Islands                          Tom McClintock, California
Diana DeGette, Colorado              Bill Cassidy, Louisiana
Ron Kind, Wisconsin
Lois Capps, California
Jay Inslee, Washington
Joe Baca, California
Stephanie Herseth Sandlin, South 
    Dakota
John P. Sarbanes, Maryland
Carol Shea-Porter, New Hampshire
Niki Tsongas, Massachusetts
Frank Kratovil, Jr., Maryland
Pedro R. Pierluisi, Puerto Rico

                     James H. Zoia, Chief of Staff
                       Rick Healy, Chief Counsel
                 Todd Young, Republican Chief of Staff
                 Lisa Pittman, Republican Chief Counsel
                                 ------                                

                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Wednesday, October 7, 2009.......................     1

Statement of Members:
    Hastings, Hon. Doc, a Representative in Congress from the 
      State of Washington........................................     2
    Kildee, Hon. Dale, a Representative in Congress from the 
      State of Michigan..........................................     9
    Rahall, Hon. Nick J., II, a Representative in Congress from 
      the State of West Virginia.................................     1
        Prepared statement of....................................     2

Statement of Witnesses:
    Bruning, Susan B., Chair, Committee on Repatriation, Society 
      for American Archaeology, Southlake, Texas.................    30
        Prepared statement of....................................    31
    Kippen, Colin, Former NAGPRA Review Committee Member, 
      Honolulu, Hawaii...........................................    33
        Prepared statement of....................................    35
    Kraus, D. Bambi, President, National Association of Tribal 
      Historic Preservation Officers, Washington, D.C., on behalf 
      of Chairman Reno Franklin..................................    17
        Prepared statement of....................................    18
    Shemayme Edwards, Hon. Brenda, Chairwoman, Caddo Nation of 
      Oklahoma, Binger, Oklahoma.................................    11
        Prepared statement of....................................    13
    Titla, Steve, General Counsel, San Carlos Apache Tribe, San 
      Carlos, Arizona, on behalf of Chairman Wendsler Nosie, Sr., 
      San Carlos Apache Tribe....................................    14
    Wenk, Dan, Deputy Director, Operations, National Park 
      Service, U.S. Department of the Interior, Washington, D.C..     3
        Prepared statement of....................................     4

Additional materials supplied:
    Halealoha Ayau, Edward, Executive Director, Hui Malama I Na 
      Kupuna O Hawai`i Nei, Statement submitted for the record...    48
    Nosie, Wendsler, Sr., Chairman, San Carlos Apache Tribe, San 
      Carlos, Arizona, Statement submitted for the record........    15
                                     


 
     OVERSIGHT HEARING ON ``NATIVE AMERICAN GRAVES PROTECTION AND 
                      REPATRIATION ACT (NAGPRA)''

                              ----------                              


                       Wednesday, October 7, 2009

                     U.S. House of Representatives

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              

    The Committee met, pursuant to call, at 10:05 a.m. in Room 
1324, Longworth House Office Building, Hon. Nick J. Rahall, II 
[Chairman of the Committee] presiding.
    Present: Representatives Rahall, Hastings, Kildee, 
Bordallo, Heinrich, Baca, Smith and Brown.

STATEMENT OF THE HONORABLE NICK J. RAHALL, II, A REPRESENTATIVE 
          IN CONGRESS FROM THE STATE OF WEST VIRGINIA

    The Chairman. The Committee on Natural Resources will come 
to order, please. This morning we meet to hear about the 
Administration's goals for the Native American Graves 
Protection and Repatriation Act, or NAGPRA, and to explore 
possible improvements to the implementation of the program. 
NAGPRA sets up a process for the identification and 
repatriation of certain human remains, funerary objects, sacred 
objects and objects of cultural patrimony of Indian tribes and 
Native Hawaiian organizations.
    The human remains that are at issue are the ancestors of 
Native Americans, many of them warriors killed in battle. They 
deserve the same respect that we give to the human remains of 
our warriors of today. The Act directed museums and Federal 
agencies to complete an inventory of their culturally 
affiliated human remains and funerary objects and submit that 
inventory to NAGPRA by  November of 1995 for publication in the 
Federal Register.
    Almost 15 years later, the Administration is still 
publishing these inventories. Recently, the Makah Tribe and the 
National Association of Tribal Historic Preservation Officers 
conducted a study of the implementation of NAGPRA. Following a 
recommendation of their report, Senator Dorgan and I requested 
a GAO study on Federal agency compliance with NAGPRA, as well 
as how appropriated funds are being used. As this study is 
underway, we will not be looking into these issues today.
    We will, however, be looking at the administration of the 
National NAGPRA Program by the National Park Service. This will 
include an examination of the data being collected, the systems 
in place, and the tools available to measure the success of the 
NAGPRA program. Based on the issues that I expect to come up 
today, we will need to ask ourselves if this program is 
receiving the attention that it deserves, and I hope today's 
hearing will serve as an impetus to improve the program.
    With that, I do look forward to hearing about the 
Administration's goals for NAGPRA and how this Committee can 
help ensure the success of the program. Among those joining us 
this morning is Mr. Dan Wenk, the Deputy Director of the 
National Park Service. For the past several months, Mr. Wenk 
has been performing extra duty serving as Acting Director of 
the Park Service as well. So, I thank you for your service and 
I do look forward to your testimony, but before that, I will 
recognize the Ranking Member, the gentleman from Washington, 
Mr. Hastings.
    [The prepared statement of Mr. Rahall follows:]

       Statement of The Honorable Nick J. Rahall, II, Chairman, 
                     Committee on Natural Resources

    This morning we meet to hear about the Administration's goals for 
the Native American Graves Protection and Repatriation Act, or NAGPRA, 
and to explore possible improvements to the implementation of the 
program.
    NAGPRA sets up a process for the identification and repatriation of 
certain human remains, funerary objects, sacred object, and objects of 
cultural patrimony of Indian tribes and Native Hawaiian organizations. 
The human remains that are at issue are the ancestors of Native 
Americans. Many of them warriors killed in battle. They deserve the 
same respect that we give to the human remains of our warriors of 
today.
    The Act directed museums and Federal agencies to compile an 
inventory of their culturally affiliated human remains and funerary 
objects and submit that inventory to the National NAGPRA program by 
November, 1995 for publication in the Federal Register. Almost 15 years 
later, the Administration is still publishing these inventories.
    Recently, the Makah Tribe and the National Association of Tribal 
Historic Preservation Officers conducted a study on the Federal agency 
implementation of NAGPRA. Following a recommendation of their report, 
Senator Dorgan and I requested a GAO. study on Federal agency 
compliance with NAGPRA as well as how appropriated funds are being 
used. As this study is underway, we will not be looking into these 
issues today.
    We will, however be looking at the administration of the National 
NAGPRA Program by the National Park Service. This will include an 
examination of the data being collected, the systems in place and the 
tools available to measure the success of the NAGPRA program. Based on 
the issues that I expect to come up today, we need to ask ourselves if 
this program is receiving the attention it deserves. I hope today's 
hearing will serve as an impetus to improve the program.
    With that, I look forward to hearing about the Administration's 
goals for NAGPRA and how this Committee can help ensure the success of 
the program.
    Among those joining us this morning is Mr. Dan Wenk, Deputy 
Director, of the National Park Service. For the past several months, 
Mr. Wenk has been performing extra duty serving as the Acting Director 
of the Park Service. I thank you for your service and look forward to 
your testimony when we are ready to begin.
                                 ______
                                 

 STATEMENT OF THE HONORABLE DOC HASTINGS, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF WASHINGTON

    Mr. Hastings. Thank you, Mr. Chairman. Thank you for 
scheduling this hearing today. Periodic oversight of laws that 
fall within this Committee's jurisdiction, I think, is rarely a 
bad idea. When it comes to the Native American Graves 
Protection and Repatriation Act, it will be valuable, I think, 
for this Committee to hear how its implementation has occurred 
since its enactment in 1990. It is most important for museums 
and Federal agencies to repatriate human remains found on 
Federal or Indian lands in a respectful and dignified manner to 
the families or tribes to whom they are known to be related.
    To do otherwise would offend the inherent dignity of both 
the departed and the living. There is not a lot of public 
attention paid to the day-to-day work of inventorying and 
repatriating human remains and cultural objects to families and 
tribes, notwithstanding how serious this work is. Ensuring the 
law is carried out appropriately and efficiently and with an 
eye on the application of sound science to identify remains and 
cultural objects correctly should be some of our chief goals.
    So, Mr. Chairman, once again, thank you for scheduling this 
hearing. I look forward to hearing the testimony of the 
witnesses. I yield back.
    The Chairman. Thank you, Doc.
    Mr. Wenk, the Deputy Director of the National Park Service, 
we welcome you to our first panel and you have the stage all to 
yourself. We do have your prepared testimony. It will be made 
part of the record as if actually read, and you may proceed as 
you desire.

            STATEMENT OF DAN WENK, DEPUTY DIRECTOR, 
            NATIONAL PARK SERVICE, WASHINGTON, D.C.

    Mr. Wenk. Thank you, Mr. Chairman, for this opportunity to 
appear before this Committee to present the Department of the 
Interior's views on the implementation of the Native American 
Graves Protection and Repatriation Act, commonly known as 
NAGPRA. I will submit my full written statement for the record 
and summarize the Department's views in my oral remarks. The 
Department of the Interior has had responsibility for the 
administration of NAGPRA since the Act was passed in 1990.
    In 2000, in order to better concentrate our efforts and 
serve the NAGPRA constituents, the National NAGPRA Program was 
separated from the National Park Service NAGPRA, and in 2004, 
both programs were separated from the National Park Service 
Archaeology Program. The National Park Service NAGPRA Program 
is located in Denver, near many tribes. The National Park 
Service NAGPRA Program works with and through the parks to 
consult with tribes, make decisions of cultural affiliation of 
human remains, and address claims to cultural items.
    The National Park Service has published many notices of 
inventory completion for human remains and notices of intent to 
repatriate on claims for cultural items. Consultation is 
ongoing for pending notices and we anticipate publication of 
these notices in this fiscal year. The National NAGPRA Program 
is administered by the National Park Service but operates as an 
omnibus program to facilitate the notices of publication of all 
Federal agencies and museums.
    The National NAGPRA Program maintains databases of the 
compliance documents submitted in the NAGPRA process, 
summaries, inventories and notices. It is the goal of the 
National NAGPRA Program to have all of those documents publicly 
accessible in databases by the end of this fiscal year. The 
National NAGPRA Program also provides staff support to the 
NAGPRA Review Committee and to the Assistant Secretary in the 
civil penalty process.
    It also administers a grants program to fund projects of 
tribes and museums and provides training across the country for 
constituents. The NAGPRA Grants Program had a 100 percent 
increase in grant applications in FY 2009. In FY 2009, 200 
notices were published, bringing to 800 the number of notices 
published since 2004, out of a total of 2,000 notices published 
since 1992. There is a minimal backlog of remaining notices 
where consultation is still ongoing.
    If a tribe is concerned that a Federal agency or museum is 
not making a factual determination which is preventing 
repatriation, they may bring a dispute to the Review Committee. 
If there is a complaint about compliance regarding a museum, an 
allegation of a civil penalty may be sent to the NPS Director 
using the template provided in the National NAGPRA website. The 
complaint will be investigated by National NAGPRA.
    These dispute resolution mechanisms are actively used by 
the tribes. The Native American Graves Protection and 
Repatriation Act established a fair process for resolving the 
repatriation of Native American human remains and collections 
and the claims of tribes to cultural items in control of the 
Federal agencies and museums. The Department of the Interior is 
pleased to administer NAGPRA programs in each of the Interior 
agencies and to support the work of the National NAGPRA 
Program.
    Mr. Chairman, that concludes my statement. I would be 
pleased to answer any questions that you or other members of 
the Committee may have.
    [The prepared statement of Mr. Wenk follows:]

          Statement of Dan Wenk, Deputy Director, Operations, 
         National Park Service, U.S. Department of the Interior

    Mr. Chairman and members of the Committee, thank you for the 
opportunity to appear before you today to present the Department of the 
Interior's views on the implementation of the Native American Graves 
Protection and Repatriation Act.
    The Native American Graves Protection and Repatriation Act of 1990 
(NAGPRA), provides a process for determining 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 Department of the Interior and the several federal agencies and 
museums that have NAGPRA obligations take their responsibilities 
seriously. As a result of NAGPRA, thousands of Native American human 
remains, funerary objects, and other cultural items have been returned 
to tribes and Native Hawaiian organizations. Consultations between 
tribes, Native Hawaiian organizations, and federal agencies and 
museums, which occur as part of the NAGPRA process, result in better 
relations and have added to the body of knowledge of museum 
collections.
    NAGPRA does not change ownership of items. Rather it asks the 
question of to whom do these items rightfully belong. Permits, granted 
by federal agencies for scientific study, confer access to human 
remains and cultural items for the accumulation of data, but do not 
transfer possession to the permittee.
Administration of NAGPRA
    The Secretary of the Interior is responsible for implementing many 
of the provisions in NAGPRA under the statute. The Secretary must 
provide guidance to museums and federal agencies to assist them with 
their compliance requirements.
    The National NAGPRA Program administered by the National Park 
Service conducts the following activities for the Secretary:
      publishing in the Federal Register inventory and 
repatriation notices for museums and federal agencies that indicate 
their decision to transfer control of remains or objects to tribes,
      creating and maintaining a database of Culturally 
Unidentifiable Human Remains,
      making grants to assist museums, tribes, and Native 
Hawaiian organizations in consulting on the determination of cultural 
affiliation and identification of cultural items, and to provide 
funding for travel and ceremonies associated with bringing ancestors 
and items home,
      providing support to the Assistant Secretary for Fish, 
Wildlife and Parks for investigating civil penalty allegations and 
preparing assessments of penalties on museums that fail to comply with 
provisions of the Act,
      establishing and providing support to the Native American 
Graves Protection and Repatriation Review Committee, which resolves 
disputes and aids repatriation,
      providing technical assistance in those instances where 
there are excavations and discoveries of cultural items on federal and 
Indian lands,
      drafting, promulgating, and implementing regulations, and
      providing technical assistance through training, the web, 
and reports for the Review Committee, as well as supporting law 
enforcement investigations of illegal trafficking.
    The National Park Service also has compliance obligations for 
parks, separate from the National NAGPRA Program.
Federal Agency and Museum NAGPRA Obligations
    Federal agencies and Indian tribes have NAGPRA responsibilities for 
the prompt disposition of Native American human remains and cultural 
items excavated or removed after November 16, 1990, when NAGPRA was 
passed. Notice of the disposition of NAGPRA items to tribes or lineal 
descendants is posted in newspapers, with copies sent to the National 
NAGPRA Program. To date, federal agencies have reported 85 
dispositions.
    NAGPRA requires museums and federal agencies to prepare summaries 
of their collections that may contain Native American unassociated 
funerary objects, sacred objects, and objects of cultural patrimony. 
They must also prepare item-by-item inventories of Native American 
human remains, with their associated funerary objects. The summaries 
provide notice to tribes and Native Hawaiian organizations of items of 
interest in a collection and invite consultation. There have been 1,551 
summaries 1 and 460 statements of no summary required 
2 submitted to the National NAGPRA Program. As a result of 
the summaries, 475 notices of intent to repatriate cultural items 
claimed by a tribe have been published accounting for 144,163 funerary 
objects, 4,301 sacred objects, 948 objects of cultural patrimony, an 
additional 822 objects that are both sacred and cultural patrimony and 
292 undesignated items. Not all objects identified in a summary will 
meet a NAGPRA category or be subject to a claim.
---------------------------------------------------------------------------
    \1\ A summary is a description of Native American ethnographic 
items in a collection. Item by item inventories list human remains and 
their associated funerary objects.
    \2\ ``No summary required'' means a museum or federal agency has no 
Native American cultural items.
---------------------------------------------------------------------------
    Inventories provide clear descriptions of the cultural affiliation 
of the Native American human remains of the museum or federal agency 
and are to be followed within six months with Federal Register 
publication of a Notice of Inventory Completion that establishes the 
rights of tribes and Native Hawaiian organizations to request 
repatriation. There have been 1,043 inventories submitted to the 
National NAGPRA Program and 1,287 notices of inventory completion 
published, accounting for 38,656 Native American human remains and one 
million funerary objects. 3
---------------------------------------------------------------------------
    \3\ Large inventories may be reported in several different notices 
of inventory completion and be organized by a site or culture. Numerous 
notices may result from a single inventory.
---------------------------------------------------------------------------
Consultation
    Consultation with tribes by museums and federal agencies is central 
to the NAGPRA process, whether the circumstances arise from collections 
or new discoveries. The National NAGPRA Program website includes maps 
of current tribal lands, treaty areas with tribes, and areas of tribal 
aboriginal occupancy. These maps assist museums and federal agencies in 
determining present-day tribes that may have an interest in items from 
an area, so that they may be included in consultation efforts. The 
Consultation Database lists names and addresses of tribal contacts that 
can also be used as a starting point for consultation.
    At the end of the NAGPRA consultation process, the museum or 
federal agency has the non-delegable duty to make a decision on 
cultural affiliation and to acknowledge and act on claims for cultural 
items. A NAGPRA inventory is the product of consultation. Museums that 
submitted inventories in 1995, but did not initially do consultation, 
have often gone back to consult with tribes on segments of the 
collection and update inventory decisions. NAGPRA grants are awarded 
for this purpose. There were 71 grant requests received this year for a 
total of $4.3 million in requests. The full $1.85 million available was 
awarded in 37 grants. From 1994-2009, 619 NAGPRA grants were awarded to 
museums, tribes, and Native Hawaiian organizations, totaling over $33 
million.
Database of Culturally Unidentifiable Native American Human Remains 
        (CUI)
    Museums and federal agencies prepare two inventories under NAGPRA. 
Those individual remains for whom cultural affiliation can be 
determined are listed on one inventory. If information is lacking to 
make a reasonable determination, the individual remains are listed on 
the inventory of culturally unidentifiable Native American human 
remains, the CUI inventory.
    A public access database of CUI was launched in fall 2005 to assist 
in further consultation and identification. Currently there are the 
remains of 124,000 individuals listed on the database and 915,783 
funerary objects associated with those remains. The number of CUI 
subsequently culturally identified, or transferred by a disposition to 
a requesting tribe, without cultural affiliation determination, is 
8,136. Pending regulations will specify a process for disposition of 
CUI to tribes and Native Hawaiian organizations, without requiring 
requests for recommendations for disposition to be presented to the 
Review Committee which makes recommendations to the Secretary. Native 
Hawaiian organizations and federally recognized tribes can then take 
responsibility for care and reburial of the unidentified Native 
American remains removed from their graves.
    We hope to launch soon a public access database of the culturally 
affiliated inventories, so that tribes and concerned parties can cross-
reference the CUI and affiliated databases to assist in further 
identification of currently unidentifiable remains. Inventories can be 
amended at any time to reflect updated and more complete decisions. A 
Notice of Inventory Completion must be published in the Federal 
Register for all culturally affiliated human remains and associated 
funerary objects. A recent report from the National NAGPRA Program 
found the remains of over 1,000 individuals for whom cultural 
affiliation had been decided, but who were not in published notices.
Withdrawal of Notices
    Compliance with the law requires publication of a notice in the 
Federal Register of a Notice of Inventory Completion and not merely 
submission to National NAGPRA of a draft document. Failure of a museum 
or federal agency to provide permission to publish a notice following 
completion of an inventory halts the repatriation process for the 
remains of the individuals listed in the inventory.
    In spring 2004, there were over 300 drafts of notices submitted 
between 1996 and 2004 for which the museum or federal agency had not 
given the National NAGPRA Program permission to publish in the Federal 
Register. Beginning in 2005, the National NAGPRA Program sent letters 
to the originators asking that they move forward on abandoned drafts, 
even if they withdrew them to complete consultation. At this time, 
there are less than two dozen older drafts, and all are in active 
preparation for publication. New incoming notices are published within 
weeks of receipt. In FY 2008, the number of notices almost doubled from 
prior years to 180 and almost 200 notices have been published in FY 
2009. The number of published notices is a reflection of the efforts of 
museums and federal agencies to consult with tribes and make decisions 
on cultural affiliation, repatriation of cultural items, and for 
disposition of the CUI. Abandoned drafts have been replaced with 
published notices.
Civil Penalties
    NAGPRA allows for penalties to be assessed against museums that 
fail to comply with a number of aspects of the NAGPRA process. 
Regulations were promulgated in 1997 and, in 2006, the first NAGPRA 
civil penalties were pursued. To date 70 investigations have been 
completed and those museums found in violation have come into 
compliance.
Barriers to Implementation and Current Issues in NAGPRA
      Curation: There are issues of access and use of Native 
American human remains and cultural items that remain in museum and 
federal agency collections. If the remains are determined to be CUI, 
the federal agency or museum has determined that there is no federally 
recognized tribe or Native Hawaiian organization with which to consult 
on access or use.
      Collections Audits: The National NAGPRA Program does not 
audit federal agency or museum collections to determine that all Native 
American human remains and cultural items are listed on inventories or 
summaries. The National NAGPRA Program does not have the authority to 
survey NAGPRA obligated entities to determine the number of human 
remains repatriated. Accounting for federal agency collections in non-
federal repositories is an agency responsibility. A Government 
Accountability Office study of federal agency compliance is pending.
      NAGPRA only applies to those human remains and cultural 
items that a museum or federal agency determines are Native American. 
The U.S. Court of Appeals for the Ninth Circuit Court, in 2004, ruled 
that for remains to be deemed Native American there must be a general 
finding that the remains have a significant relationship to a presently 
existing tribe, people, or culture. This ruling has created confusion 
for museums and federal agencies that must make a threshold 
determination of Native American for ancient remains.
    This concludes my prepared remarks. I would be happy to answer any 
questions that you or other members of the Committee may have.
                                 ______
                                 
    The Chairman. Thank you very much, and as I said in my 
opening statement, I certainly commend the double duty that you 
are performing these days and the tremendous work that you do 
on behalf of our Park Service, as well as all of the staff at 
the National Park Service. Let me ask you one question about 
the Administration's goals. What does the Administration hope 
to accomplish within the next year, and by the end of President 
Obama's first term, with respect to this NAGPRA program?
    Mr. Wenk. We have a number of goals that we hope to 
accomplish, and I think we are well on our way to doing so. 
First of all, we are looking to publish some new regulations. 
One of the regulations that we are looking to publish very soon 
is the regulation regarding culturally unidentifiable objects 
and human remains. That should be published, we hope, within 
the next, literally, few days or few weeks. We are scheduled to 
have a briefing with OMB on that, or we are setting up a 
schedule to brief OMB on that regulation very quickly.
    We are looking to complete on our website the inventory of 
Native American human remains for both the culturally 
affiliated and the culturally unidentifiable. We are working 
with the Native American tribes in terms of looking at the 300 
notices that you have previously provided questions about. We 
have resolved, I believe, Mr. Chairman, about over 226 of those 
notices that were on hold at one time have now been published. 
We only have about 10 percent of them left that are currently 
in active negotiation between the tribes and the museums or 
field offices of agencies to look at the repatriation.
    I think the biggest thing we are trying to do is we are 
trying to get to have a high level of transparency, that all of 
our databases are brought up to date, so that everyone has a 
full knowledge of what is out there and who controls what 
objects.
    The Chairman. So, it appears that after 15 years of 
inaction, finally we are beginning to see some action on 
certain aspects of the program?
    Mr. Wenk. I believe that the action, Mr. Chairman, really 
started--I will say that prior to about 2004 we were not as 
active as we could have or should have been, and I think since 
2004 we have seen significant progress.
    The Chairman. OK. Last week, the National Park Service 
informed the museums and Federal agencies that I had requested 
copies of withdrawn notices, but that notices which had been 
withdrawn because of a change in cultural affiliation would not 
be provided. The question is, who made the decision to not 
provide me with this information that I had requested in May, 
and what is the rationale for that decision? I ask because I 
really do want this information.
    Mr. Wenk. I believe that we are going to give you an exact 
accounting of each one of those 300 notices. I checked this 
morning, Mr. Chairman, and I was informed that it is not yet--
the response, while it is awaiting signature, it has not yet 
been signed. I would say it should be to you in the next few 
days. Of those 300 notices, I will go back and say that 221 of 
them have been published. The remaining 79 of those notices, I 
could look at a matrix and go through them exactly, but a 
number of those will not be published because a determination 
has been--they have been taken care of in other notices.
    They were, if you will, double-counted, in terms of one 
notice was, an object had already been taken care of in another 
notice, so they were taken off the list. The only ones that 
have not been accounted for are the ones that we still are in 
active negotiation or still there is active negotiation going 
on between the museum and the tribe to come to a determination 
on those pieces, but we believe those are going to be taken 
care of in a very short order, and we believe you will get a 
very direct response, Mr. Chairman.
    The Chairman. So, you will provide me with those in which 
there was a change in cultural affiliation?
    Mr. Wenk. I believe the answer is yes, we will.
    The Chairman. Thank you. I appreciate it. In May '09, I 
requested copies of notices that had been withdrawn. Recently, 
the NPS staff informed a Review Committee and others that core 
functions had to cease as a result of this request. Do you 
think the NAGPRA office has sufficient staff if it is unable to 
comply with a four-month-old request without shutting down 
other operations?
    Mr. Wenk. Mr. Chairman, I believe that the NAGPRA staff is 
providing as efficient service they can with the staffing that 
we have.
    The Chairman. Is that sufficient staff?
    Mr. Wenk. Yes, Mr. Chairman, I will say it is sufficient 
staff. Shutting down that work was something that I have had 
discussions with the staff subsequent to that happening. I 
believe that we have a very active constituency that looks at 
our information, and I believe we are going to take steps so 
that will not happen again. We have reduced the backlog. I 
think we are very well poised to be able, with the staff we 
have, to provide the responses and information that is 
requested by tribes, by museums, and in fact by Congress.
    The Chairman. OK. Thank you.
    The gentleman from Washington, Mr. Hastings.
    Mr. Hastings. Thank you, Mr. Chairman. Mr. Wenk, you 
alluded to the CUI regulations that you hope to be, I guess, 
made public here very soon. There was some discussion on this 
two years ago in the last administration. Can you give me a 
sense of what these regulations are, if they differ from what 
they were two years ago?
    Mr. Wenk. My sense is that the regulation is basically the 
same as that we have been trying to get out for the last two 
years. I understand there was an administrative problem when we 
thought we were going to be able to publish them about nine 
months ago that we had to overcome, and we had to go back 
through some of the process, but my understanding is the 
regulation today is basically the same as it was when we were 
trying to get them out about nine months ago.
    Mr. Hastings. OK. Well, I know that we had some questions 
on that a couple years ago. Is it possible that you could brief 
my staff on that prior to that--at least to where you are right 
now?
    Mr. Wenk. We would be very happy to come up and brief your 
staff, yes.
    Mr. Hastings. OK. Let us try to arrange that as quickly as 
possible if we could, OK?
    Mr. Wenk. Yes.
    Mr. Hastings. All right. Thank you.
    Thank you, Mr. Chairman.
    The Chairman. The gentleman from Michigan, the co-chair of 
the Native American Caucus in the Congress, Mr. Kildee.

STATEMENT OF THE HONORABLE DALE E. KILDEE, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MICHIGAN

    Mr. Kildee. Thank you very much, Mr. Chairman. I am very 
happy that we are having this hearing. It is very important 
that the Federal government carry out its responsibility, I 
think both legal and moral responsibility, to make sure these 
sites are respected and cared for, protected, and I think the 
Federal government can set an example also for other levels of 
government. The city of Flint is probably one of the most dire 
cities in America.
    There are more people leaving each day. The city is about 
half the population it was 20 years ago. They are tearing more 
houses down than they are building it, and my nephew, who is 
familiar with my work down here on this bill and this 
legislation, was rebuilding one section of town and in 
demolishing, came across skeletal remains, and bingo, he set 
the land aside, stopped all demolition, all construction, and 
got hold of the Saginaw Chippewa Indians about 70 miles north 
of Flint. They came down and they identified these sites as 
Indian burial grounds with the various artifacts and everything 
that--the way of burial and everything.
    And here again, because my nephew, who is the Treasurer of 
the county and has jurisdiction over that, stopped permanently 
that area of about 3 acres from any further construction, 
fenced it off, and the Saginaw Chippewa, as joint partners, 
will be taking care over that property until a final decision 
is made, but that final decision will have to be concurred in 
by the tribe, and I think that attitude which I think we 
intended to permeate this bill is one that you, I am sure, feel 
is an obligation upon your agency to make sure that not just 
the technical adherence to the law, but the spirit.
    This law was written for a very important reason: respect 
for the first Americans. And so I want to work with you to make 
sure that in our oversight, we set a plan that will guarantee 
that respect. There are two things that are important. First of 
all is designation of these sites, and resources, and we have a 
responsibility in the Congress to make sure there are the 
resources for that. In the meantime, with whatever resources 
you have now, I commend you to do everything you can to make 
sure that the spirit in which this legislation, this mandate, 
was passed, be carried out, and I look forward to working with 
you, and Mr. Chairman, I thank you for having this hearing.
    The Chairman. Thank you, Mr. Kildee.
    The gentlelady from Guam, Ms. Bordallo.
    Ms. Bordallo. Thank you very much, Mr. Chairman. I have a 
question for Mr. Wenk, for the record. I wanted to ask if there 
have been any discussions at the Department of the Interior on 
the initiatives within the Native American Graves and 
Repatriation Act that considers the needs of the indigenous 
people of the territories, the U.S. territories.
    Mr. Wenk. I have not personally been engaged in any 
discussions, and I am sorry that I can't--I have to believe 
that there has been, but I can't tell you that I have been 
personally, but I will provide information to you in terms of 
what discussions have been held.
    Ms. Bordallo. Would there be anybody on your staff here 
that would have an answer?
    Mr. Wenk. If I could ask Dr. Hunt.
    [Pause.]
    Mr. Wenk. OK. We have a jurisdictional issue. The statute 
does not include the territories.
    Ms. Bordallo. The statute does not include----
    Mr. Wenk. The statute does not include the territories.
    Ms. Bordallo. Well, Mr. Chairman, I feel we should correct 
that in some way. The statute does not include the territories.
    The Chairman. It is my understanding we have never merged 
the two, but certainly we will look at it because you raise a 
valid point.
    Ms. Bordallo. Very good. Thank you, Mr. Chairman.
    The Chairman. We have to look out for the territories.
    Ms. Bordallo. I look forward to the inclusion of the 
territories.
    The Chairman. The gentleman from New Mexico, Mr. Heinrich.
    Mr. Heinrich. Thank you, Mr. Chairman.
    Mr. Wenk, good to see you. I wanted to ask you a question 
that is a little outside of the scope of your testimony, but 
wanted to get your perspective. I was hoping you might be able 
to speak about any impact or role that NAGPRA has in protecting 
newly discovered gravesites and objects, not just collections 
that are already in museum or Federal agency collections, and 
what you think the National Park Service's role in protecting 
newly discovered ancestral remains might be.
    Mr. Wenk. There are requirements, is my understanding, 
under NAGPRA that were described earlier by your colleague, 
that notices are required to be published, that just as 
described earlier, that there are steps that are taken to 
ensure that those new discoveries are dealt with in a very 
expeditious manner.
    Mr. Heinrich. Thank you.
    I will yield back the balance of my time, Chairman.
    The Chairman. OK. Mr. Wenk, thank you very much for being 
with us today and working with us. We appreciate it.
    Mr. Wenk. Thank you, Mr. Chairman.
    The Chairman. Our next panel is composed of the following 
witnesses: The Honorable Brenda Shemayme Edwards, the 
Chairwoman of the Caddo Nation of Oklahoma, Binger Oklahoma, 
and she is accompanied by Bobby Gonzalez, the NAGPRA 
coordinator; Mr. Steve Titla, the General Counsel of the San 
Carlos Apache Tribe, San Carlos, Arizona, accompanied by Mr. 
Kevin Parsi, of Titla & Parsi; Ms. D. Bambi Kraus, the 
President, National Association of Tribal Historic Preservation 
Officers, Washington, D.C.; Ms. Susan Bruning, the Chairwoman, 
the Repatriation Committee of the Society for American 
Archaeology, Southlake, Texas; and Mr. Colin Kippen, the former 
NAGPRA Review Committee member, Honolulu, Hawaii.
    Ladies and gentlemen, we welcome you to the Committee this 
morning. I apologize if I had some mispronunciations in there. 
We do have your prepared testimonies. They will be made part of 
the record as if actually read, and you may proceed in the 
order in which I introduced you.

STATEMENT OF BRENDA SHEMAYME EDWARDS, CHAIRWOMAN, CADDO NATION 
                          OF OKLAHOMA

    Ms. Shemayme Edwards. Good morning. My name is Brenda 
Shemayme Edwards and I am the Chairwoman of the Caddo Nation of 
Oklahoma. I am here today to talk about funding issues we have 
with the Native American Graves Protection and Repatriation 
Act. The United States of America has a legal responsibility to 
its citizens and dependent Indian nations to ensure that its 
Federal laws are carried out. NAGPRA developed a systematic 
process in determining the rights of culturally affiliated----
    The Chairman. Excuse me just a minute. Could you pull that 
mic a little closer and maybe make sure it is turned on?
    Ms. Shemayme Edwards. Can you hear me?
    The Chairman. Better, yes.
    Ms. Shemayme Edwards. Is that better?
    NAGPRA developed a systematic process in determining the 
rights of culturally affiliated descendants to certain Native 
American human remains and associated funerary objects, sacred 
objects and objects of cultural patrimony as defined by NAGPRA. 
However, little funding has been made available to tribal 
governments to fulfill basic consultations and repatriations 
with repositories which house these collections. The funding 
made available has been highly competitive through the NAGPRA 
Grant Program with the National Park Service.
    NAGPRA funding levels have remained basically the same 
since its inception. For the past 15 years, around $2 million 
per year have been made available. The funding is highly 
competitive with no basis in actual need. As such, a tribe with 
millions of dollars from casino revenue monies have the same 
chance of getting a grant as a tribe like us with no casino 
revenues and limited financial resources. In 1994, the NAGPRA 
Review Committee recommended that Congress set aside $10 
million for the first year of funding. However, only $2.3 
million was set aside.
    In 2008, funding levels were at their lowest at 101.58 
million. The Caddo Nation of Oklahoma was one of the first 
tribes to submit and receive NAGPRA funding from the National 
Park Service in 1994. Southwest Arkansas, northwest Louisiana, 
eastern Oklahoma and northeast Texas have long been considered 
the Caddo homeland. Throughout every one of these states, and 
spread from the East Coast to the West Coast, Caddo human 
remains and funerary items continue to be housed and stored on 
shelves.
    Our NAGPRA office has worked tirelessly over the past 14 
years to identify and repatriate human remains and funerary 
objects from across the United States. Just recently, we 
submitted a proposal to the Department of the Interior with 
some of the issues that we have faced. Currently, we know of 
over 130 different museums, universities and repositories that 
hold collections of either human remains or funerary objects, 
along with unassociated funerary objects, sacred objects and 
objects of cultural patrimony.
    The reality is, if we were to receive a NAGPRA grant each 
and every year, it would be at least 130 years before all of 
our human remains, associated funerary objects, unassociated 
funerary objects, sacred objects and objects of cultural 
objects could be repatriated. We have recently been made aware 
that a large number of NAGPRA pending draft notices to be 
published in the Federal Register were pulled without 
consultation. We would like to know who is responsible for 
pulling these notices and why they were pulled.
    For well over a century, burials and cemeteries containing 
human remains and funerary objects, sacred objects and objects 
of cultural patrimony have been subjected to looting and 
collecting. Even today, there are numerous websites around on 
the internet that will buy, sell and trade Caddo funerary 
objects. There are also private museums that house and 
oftentimes buy, sell and trade Caddo funerary objects.
    In 2001, 21 Caddo funerary vessels were stolen from the 
Texas Archaeological Research Laboratory at the University of 
Texas in Austin. A $10,000 reward went out and the objects were 
eventually recovered. Five years later the University of 
Arkansas at Magnolia reported the theft of 26 Caddo funerary 
objects. These objects are being held at the university on 
behalf of Vicksburg District Corps of Engineers and were to be 
repatriated back to the Caddo Nation.
    Federal investigations are ongoing, but these funerary 
objects have not been recovered. There are a number of new 
Caddo museums being proposed across the homelands of the Caddo. 
They receive their funding through a variety of means; through 
investors, universities, loans and local banks, donations and 
grants using the Caddo collections that they have as leverage. 
Many of the repositories where Caddo human remains and funerary 
objects are housed also continue to receive funding for 
research projects related to these collections to create 
educational tools for the general public, yet our own Caddo 
museum has only one small exhibit space, one full-time 
employee, and no support staff.
    Last, it is sad for me to note that our ancestors continue 
to be regarded as merely natural resources instead of human 
beings. I am not aware of any other ethnical group who is 
subjected to this stereotype. I sincerely request that these 
important funding issues be addressed and corrected in such a 
way that the work that we have done in the past can continue on 
into the future. Repatriation is so very important for our 
people.
    The act itself is a show of love and respect for our 
ancestors. Repatriation is also a way for our children to learn 
about where we came from and who we are as a unique culture. On 
behalf of the Caddo Nation membership, past and present, I 
thank you.
    [The prepared statement of Chairwoman Edwards follows:]

    Statement of The Honorable Brenda Shemayme Edwards, Chairwoman, 
               Caddo Nation of Oklahoma, Binger, Oklahoma

    Good Morning. My name is Brenda Shemayme Edwards. I am the 
Chairwoman for the Caddo Nation of Oklahoma. I am here today to talk 
about funding issues we have with the Native American Graves Protection 
and Repatriation Act.
    The United States of America has a legal responsibility to its 
citizens and its dependent Indian nations to assure that its federal 
laws are carried out. NAGPRA developed a systematic process in 
determining the rights of culturally affiliated descendants to certain 
Native American human remains, associated funerary objects, 
unassociated funerary objects, sacred objects, and objects of cultural 
patrimony ( as defined by NAGPRA ). However, little funding has been 
made available to tribal governments to fulfill basic consultations and 
repatriations with repositories which house these collections. The 
funding made available has been highly competitive through the NAGPRA 
grants program with the National Park Service.
    NAGPRA funding levels have remained basically the same since its 
inception. For the past 15 years, around 2 million dollars per year has 
been available. The funding is highly competitive with no basis in 
actual need. As such, a tribe with millions of dollars from casino 
revenue monies has the same chance of getting a grant as a tribe like 
us, with no casino revenue and limited financial resources. In 1994, 
the Native American Graves Protection and Repatriation Review Committee 
recommended that Congress set-aside 10 million dollars for the first 
year of funding. However, only 2.3 million was set-aside. In 2008 
funding levels were at their lowest at under $1.58 million.
    The Caddo Nation of Oklahoma was one of the first tribes to submit 
and receive NAGPRA funding from the National Park Service in 1994. 
Southwest Arkansas, northwest Louisiana, eastern Oklahoma, and 
northeast Texas have long been considered the Caddo homeland. 
Throughout every one of these states and spread from the east coast to 
the west coast, Caddo human remains and funerary items continue to be 
housed and stored on shelves.
    Our NAGPRA office has worked tirelessly over the past 14 years to 
identify and repatriate human remains and funerary objects from across 
the United States. Just recently we submitted a proposal to the 
Department of the Interior explaining some of the issues we have faced.
    Currently, we know of over 130 different museums, universities, and 
repositories that hold collections of either human remains or funerary 
objects, along with unassociated funerary objects, sacred objects, and 
objects of cultural patrimony. The reality is if we were to receive a 
NAGPRA grant each and every year, it would be at least 130 years before 
all of our human remains, associated funerary objects, unassociated 
funerary objects, sacred objects and objects of cultural patrimony 
could be repatriated.
    For well over a century, burials and cemeteries containing the 
human remains, associated funerary objects, unassociated funerary 
objects, sacred objects and objects of cultural patrimony have been 
subjected to looting and collecting. Even today, there are numerous 
websites found on the Internet that buy, sell, and trade Caddo funerary 
objects. There are also private museums that house (and oftentimes, 
buy, sell, and trade) Caddo funerary objects.
    In 2001, 21 Caddo funerary vessels were stolen from the Texas 
Archeological Research Laboratory at the University of Texas in Austin. 
A $10,000 dollar reward went out and the objects were eventually 
recovered. Five years later, the University of Arkansas at Magnolia 
reported the theft of 26 Caddo funerary objects. These objects were 
being held at the university on behalf of the Vicksburg District Corps 
of Engineers and were to be repatriated to the Caddo Nation. Federal 
investigations are ongoing but these funerary objects have not been 
recovered.
    We are in a conundrum. There are a number of new ``Caddo'' museums 
being proposed across the homelands of the Caddo. They receive their 
funding through a variety of means; investors, universities, loans with 
local banks, donations and grants using the Caddo collections they have 
as leverage. Many of the repositories where Caddo human remains and 
funerary objects are housed also continue to receive funding for 
research projects related to these collections to create educational 
tools for the general public, yet our own museum has only one small 
exhibit space, one full-time employee, and no support staff.
    Lastly, it is sad to note that our ancestors continue to be 
regarded as merely ``natural resources'' instead of human beings. I am 
not aware of any other ethnic group who is subjected to this 
stereotype. I sincerely request that these important funding issues be 
addressed and corrected in such a way that the work we have done in the 
past can continue on in to the future. Repatriation is important for 
our people. The act itself is a show of love and respect for our 
ancestors. Repatriation is also a way for our children to learn about 
where we came from and who we are as a unique culture. Thank you.
                                 ______
                                 
    The Chairman. Thank you, Madam Chairwoman.
    Mr. Titla?

          STATEMENT OF STEVE TITLA, GENERAL COUNSEL, 
          SAN CARLOS APACHE TRIBE, SAN CARLOS, ARIZONA

    Mr. Titla. Good morning, Chairman, members of the 
Committee. Thank you for having this hearing on implementation 
of the NAGPRA act. The Arizona Apache tribes work on 
repatriation matters jointly through the Western Apache NAGPRA 
Working Group. These tribes are the San Carlos Apache Tribe, 
White Mountain Apache Tribe, Tonto Apache Tribe, and Apaches of 
the Yavapai-Apache Nation. Since 1996, the Working Group has 
repatriated 302 sacred objects and objects of cultural 
patrimony from 20 institutions under NAGPRA, and another 38 
objects from the Smithsonian.
    We currently await the return of another 154 objects in 
pending claims. The objects that we claim are vitally important 
and alive, belonging to holy beings whose power infuses them. 
These objects must be properly returned and ritually cared for, 
or we suffer dire consequences in the Apache people. In the 
great majority of our claims, museums have embraced the spirit 
of NAGPRA and have worked with us in open and in good faith to 
repatriate these items in the most appropriate and expedient 
manner.
    Most museums have acknowledged that they should never have 
held these objects in the first place. Traditional, responsible 
Apaches would never, now and in the past, willingly give up 
these items to a non-Apache for non-ritual use. Most of these 
objects were acquired, sometimes stolen, from Apache lands by 
museums at a time of extraordinary hardship, misery and 
injustice for Apache people. Some agents of museums took 
deliberate advantage of these conditions to get these items at 
the expense of Apaches.
    We believe that NAGPRA is a form of civil rights 
legislation, enacted as an attempt to right these past wrongs. 
For Apaches, righting these wrongs includes healing the damage 
caused by the alienation of our powerful objects and the 
circumstances which compelled that alienation. While the 
repatriation of these objects alone goes a long way in righting 
these wrongs, it does not fully facilitate healing for the 
Apache people.
    NAGPRA provides for further healing by allowing museums to 
state whether objects are sacred objects, objects of cultural 
patrimony, or a combination of these two. An acknowledgment 
that an item is an object of cultural patrimony is an admission 
that museums, at a minimum, have objects that are not 
rightfully their property, or at the maximum, that they were at 
least a party to wrongdoing. Such an admission will help 
appease the holy beings who were wronged so many years ago, and 
provides a measure of peace of mind to the Apache people.
    Currently, the Field Museum of Natural History in Chicago 
and the American Museum of Natural History in New York are 
attempting to remove the key element of justice from NAGPRA. 
These museums have among the largest collections of sensitive 
Apache items and had agents who took egregious advantage of 
Apaches in order to acquire highly sensitive objects near the 
turn of the last century. These museums are refusing to 
classify Apache items specifically as sacred objects and 
objects of cultural patrimony as claimed in the notices of 
intent to repatriate in the Federal Register, or even to 
meaningfully discuss the issue with us.
    In addition, these museums refuse, as an alternative to 
classifying these objects, to admit to any wrongdoing in 
collecting the items or to apologize for their actions. They 
are legally justifying this position according to the current 
Park Service interpretation of NAGPRA. The Park Service allows 
museums to refer to items under notices of intent to repatriate 
as merely cultural items, as opposed to sacred objects and/or 
objects of cultural patrimony.
    We believe that this is a highly narrow and prejudicial 
view, interpretation of the law. This interpretation demeans 
our powerful objects and the holy people to whom they belong, 
which we cannot allow. This interpretation removes any 
obligations from museums to explain their positions. 
Compounding the problem is the fact that the NAGPRA Review 
Committee can only make advisory findings and recommendations. 
While the Working Group has won twice before the Review 
Committee in formal disputes with museums, the museums chose 
not to follow the committee's recommendations.
    This, coupled with current Park Service interpretations of 
NAGPRA, has denied Apaches the full measure of the justice that 
NAGPRA is capable of providing. Chairman, it looks like I am 
out of time, but you have my statement. Thank you.
    [The prepared statement of Chairman Nosie follows:]

  Statement submitted for the record by Chairman Wendsler Nosie, Sr., 
                        San Carlos Apache Tribe

    The Arizona Apache Tribes work on repatriation matters jointly 
through the Western Apache NAGPRA Working Group (Working Group). These 
tribes are the San Carlos Apache Tribe, the White Mountain Apache 
Tribe, the Tonto Apache Tribe, and the Apaches of the Yavapai-Apache 
Nation.
    Since 1996 the Working Group has repatriated 302 sacred objects and 
objects of cultural patrimony from 20 institutions under NAGPRA, and 
another 38 objects from the Smithsonian. We currently await the return 
of another 154 objects in pending claims.
    The objects that we claim are vitally important and alive, 
belonging to Holy Beings whose power infuses them. These objects must 
be properly returned and ritually cared for, or we suffer dire 
consequences.
    In the great majority of our claims, museums have embraced the 
spirit of NAGPRA, and have worked with us in open, good faith to 
repatriate these items in the most appropriate and expedient manner. 
Most museums have acknowledged that they should never have held these 
objects in the first place.
    Traditional, responsible Apaches would never, now and in the past, 
willingly give up these items to a non-Apache for non-ritual use. Most 
of these objects were acquired, sometimes stolen, from Apache lands by 
museums at a time of extraordinary hardship, misery, and injustice for 
Apache people. Some agents of museums took deliberate advantage of 
these conditions to get these items, at the expense of Apaches.
    We believe that NAGPRA is civil rights legislation, enacted as an 
attempt to right these past wrongs. For Apaches, righting these wrongs 
includes healing the damage caused by the alienation of our powerful 
objects and the circumstances which compelled that alienation. While 
the repatriation of these objects alone goes a long way in righting 
these wrongs, it does not fully facilitate healing. NAGPRA provides for 
further healing by allowing museums, to state whether objects are 
sacred objects, objects of cultural patrimony, or combinations of 
these. An acknowledgement that an item is an object of cultural 
patrimony is an admission that museums, at a minimum, have objects that 
are not rightfully their property, or, at the maximum, that they were 
at least a party to wrongdoing. Such an admission helps appease the 
Holy Beings who were wronged so many years ago, and provides a measure 
of peace of mind to Apache communities.
    Currently the Field Museum of Natural History in Chicago and the 
American Museum of Natural History in New York are attempting to remove 
this key element of justice from NAGPRA. These museums have among the 
largest collections of sensitive Apache items, and had agents who took 
egregious advantage of Apaches in order to acquire highly sensitive 
objects near the turn of the last century. These museums are refusing 
to classify Apache items specifically as sacred objects and objects of 
cultural patrimony, as claimed, in the Notices of Intent to Repatriate 
in the Federal Register, or even to meaningfully discuss the issue with 
us. In addition, these museums refuse--as an alternative to classifying 
these objects--to admit to any wrongdoing in collecting the items or to 
apologize for their actions. They are legally justified in this 
position according to the current Park Service interpretation of 
NAGPRA.
    The Park Service allows museums to refer to items in their Notices 
of Intent to Repatriate as merely ``cultural items'', as opposed to 
``sacred objects'' and/or ``objects of cultural patrimony''. We believe 
that this is a highly narrow and prejudiced interpretation of the law. 
This interpretation demeans our powerful objects and the Holy People to 
whom they belong, which we cannot allow. This interpretation removes 
any obligations from museums to explain their positions, while placing 
a burdensome onus of proof on tribes (often requiring tribes to reveal 
highly sensitive information publicly); as well as allowing museums to 
avoid any admission of wrongdoing.
    Compounding this problem is the fact that the NAGPRA Review 
Committee can only make advisory findings and recommendations. While 
the Working Group has won twice before the Review Committee in formal 
disputes with museums, the museums chose not to follow the Committee's 
recommendations. This, coupled with current Park Service 
interpretations of NAGPRA, has denied Apaches the full measure of 
justice that NAGPRA is capable of providing.
    Additionally the Park Service has told us that the Review Committee 
cannot make a finding regarding a completed repatriation, and so now we 
must choose between repatriating objects as quickly as possible (as 
required by traditional guidelines), or seeking a measure of justice 
from the Review Committee. We strongly disagree with this 
interpretation of the law, and deeply resent the pain and confusion 
that this compromising interpretation has caused.
    These are not trivial matters to us, and we have recently made a 
request to the Secretary of the Interior to review these matters, and 
will be discussing these at the upcoming NCAI session. Our concerns 
could be resolved to a large degree by requiring museums to state 
whether claimed items are sacred objects and/or objects of cultural 
patrimony, when so claimed, and by giving more teeth to Review 
Committee recommendations.
    Of further concern is the increasing looting of archaeological 
artifacts from our reservations. Both Tribal members and outsiders are 
looting archaeological sites, our people driven by the shocking 
economic and social conditions within our community.
    It is nearly impossible to combat this problem under current 
financial constraints. Even though our Reservation consists of 1.8 
million acres of Federal trust land, our cultural and natural resources 
management is funded at one-fourth to one-seventh the levels for 
comparable land, issues, and activities on the National Forests 
immediately adjacent to the Reservation. This seriously challenges our 
ability to sustain the economic development necessary to prevent the 
problem in the first place, or to combat it in the second.
    I very much hope that you look into these matters, and will be 
pleased to provide you with more information.
    Thank you for time and attention.
                                 ______
                                 
    The Chairman. Thank you.
    Ms. Kraus?

STATEMENT OF D. BAMBI KRAUS, PRESIDENT, NATIONAL ASSOCIATION OF 
   TRIBAL HISTORIC PRESERVATION OFFICERS, WASHINGTON,    D.C.

    Ms. Kraus. Mr. Chairman and members of the Committee, thank 
you for the opportunity today to present testimony on the 
Native American Graves Protection and Repatriation Act. I am 
representing the National Association of Tribal Historic 
Preservation Officers. We are the only national Indian 
organization of tribal government officials who are committed 
to preserving, rejuvenating and protecting Native cultures and 
practices throughout the United States.
    NATHPO Chairman Reno Franklin is unable to be here today 
and he sends his regrets. Today's hearing is about America's 
living history, a uniquely American history, and how as 
Americans, we treat our dead, and how we treat the sacred 
cultural objects that play an important role in the living 
cultures of today. About 20 years ago, Native and non-Native 
people worked together to craft the legislation known as 
NAGPRA.
    NATHPO acknowledges Congressman Mo Udall and Congressman 
George Miller of this Committee, along with Walter Echo-Hawk, 
Jack Trope and Jerry Flute, who, without their foresight and 
work, we wouldn't have had NAGPRA in the first place. And you 
know, the bottom line in terms of NAGPRA is it is a Federal 
law. It is Federal Indian law and it was created for the 
benefit of Indian tribes and Native Hawaiians. In a few weeks, 
the 19th anniversary of the signing of the Act will occur, and 
it is that span of 19 years that I would like to discuss today, 
and even though NATHPO is not a well-funded organization, we 
devoted a substantial amount of our meager resources over the 
past three years to evaluate how the Federal agencies are 
complying with the law.
    It is out of a sense of duty and responsibility to both the 
living and the dead that we took on this task. We do it for 
Indian communities of today who are forgotten and neglected in 
the rural parts of Indian country, and we did it for our dead, 
for our ancestors who were never intended to be housed in 
Federal repositories and museums throughout the land, being 
used for scientific testing at the whim of the latest theory.
    A year ago, NATHPO released a national report on how 
Federal agencies are complying with the Act. We identified many 
challenges and barriers to success in Indian country. That 
report, done collaboratively by the Makah Tribe of Washington 
and NATHPO, was the first in-depth report of its kind, and we 
listed many recommendations on how to improve the process so 
that it serves its audience, Indian country, and this is a copy 
of the report.
    Among the--I am calling it the Makah report. Among the 
Makah report's findings and recommendations for improvement are 
the following: provide adequate resources for Indian tribes, 
Native Hawaiian organizations and Federal agencies necessary to 
comply with the Act; improve both the quality and access to 
information in the NAGPRA process; develop and publish in the 
Federal Register a tribal consultation step-by-step process so 
that an open and transparent process is available to all; 
develop and offer appropriate training for Native people and 
Federal officials; improve the content and guidelines on using 
the Culturally Unidentifiable Native American Inventories 
Database.
    So, that is just a short list of the recommendations we 
included in the report to improve the Act and how it is being 
implemented. I would like to comment specifically on the 
Culturally Unidentifiable Native American Inventories Database. 
In the legislative process that created NAGPRA, it was 
estimated that there were approximately 100,000 to 200,000 
Native Americans who could be repatriated using this Act. It is 
with great sadness to report that after 19 years, two out of 
every three Native Americans of that estimated amount still 
have not been repatriated, and in fact, they are now listed as 
culturally unidentifiable, with little likelihood of being 
repatriated unless the system is improved.
    Again, two out of three Native Americans, over 123,000 
Native Americans are now listed as culturally unidentifiable 
and they remain languishing on museum shelves, and just to give 
you an idea of what 123,000 people, known to be Native 
Americans, but 123,000 people is roughly the size of Bellevue, 
Washington or New Haven, Connecticut or Topeka, Kansas. This 
indicates that there is much work to be done. NATHPO 
appreciates the Committee's time today to hear about this 
important act.
    Since this hearing was announced and since NATHPO was 
listed as a witness, I have received numerous pleas from around 
the country, from Native people and tribal communities around 
the country, asking me to tell their story, asking NATHPO to 
tell their story and to tell someone about the struggle that 
they have in their own communities to try and implement this 
Act and to make it work for them and for their tribal 
communities.
    The people who have the most at stake, Native people who 
know their dead, who know their sacred objects and the stories 
that go along with those objects, may not be here today to 
testify for themselves, and they may not be here in person, but 
I have been asked to relay their thanks to the Committee for 
your ability to talk about something that is so important on a 
very local level. I will be happy to answer any questions the 
Committee may have for me at a later time. Thank you very much.
    [The prepared statement of Ms. Kraus follows:]

Statement of D. Bambi Kraus, President, National Association of Tribal 
   Historic Preservation Officers, on behalf of NATHPO Chairman Reno 
                                Franklin

    Good morning Mr. Chairman and members of the committee. Thank you 
for the opportunity to testify at this oversight hearing on the Native 
American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 
3001 et seq. NATHPO Chairman Reno Franklin sends his regrets as he is 
not able to be here in person, and thanks the committee for their time 
and attention to examining the status of a federal law that affects 
almost every Native person today.
Background
    Today I am representing the National Association of Tribal Historic 
Preservation Officers (NATHPO). NATHPO is a national not-for-profit 
professional association of federally recognized Tribal government 
officials who are committed to preserving, rejuvenating, and supporting 
American Indian, Alaska Native, and Native Hawaiian cultures and 
practices. In 1998, the initial cohort of 12 officially recognized 
Tribal Historic Preservation Officers (THPOs) created NATHPO with the 
mission to preserve Native languages, arts, dances, music, oral 
traditions, and to support tribal museums, cultural centers, and 
libraries.
    The number of Tribal Historic Preservation Officers (THPOs) 
continues to increase since they were first recognized in 1996 by the 
National Park Service, U.S. Department of the Interior. THPOs assume 
the role and responsibilities of the State Historic Preservation 
Officers on their respective Indian reservations and aboriginal lands 
from which their ancestors once lived and were laid to rest. In 2008, 
there are now 86 officially recognized THPOs and our organization's 
membership has increased commensurately. NATHPO's membership includes 
THPOs and tribal governments that support the mission and goals of our 
organization.
    THPOs are not just tasked with complying with the National Historic 
Preservation Act, they are often also the ``NAGPRA representative'' for 
their tribe.
    In addition to convening training workshops and national meetings, 
NATHPO has produced original research reports, including: ``Federal 
Agency Implementation of the Native American Graves Protection and 
Repatriation Act'' (2008); and ``Tribal Consultation: Best Practices in 
Historic Preservation'' (2005).
    I am familiar with the issues in today's hearing based upon my work 
on repatriation issues while being employed at the National Association 
of Tribal Historic Preservation Officers, as well as prior professional 
employment at the National Indian Policy Center and the Smithsonian 
Institution's National Museum of Natural History. Bambi Kraus is my 
English name, Yatxaakw is my Tlingit name.
Why Was NAGPRA Created?
    NAGPRA was enacted in response to accounts that span many 
generations over the significant portion of two centuries. These 
accounts document a spectrum of actions from harvesting human remains 
from the battlefield to disinterment of existing graves to the theft of 
Native American human remains, funerary objects given to the deceased 
at burial, sacred objects of different types, and objects of cultural 
patrimony that belong to the collective Native community.
    Within a few years time, two public laws were enacted that forever 
changed how Native Americans are viewed today:
      Public Law 101-601, the Native American Graves Protection 
and Repatriation Act (November 16, 1990).
      Public Law 101-185, the National Museum of the American 
Indian Act (November 28, 1989; later amended in 1996 to include 
repatriation provisions) and
    NAGPRA has been at times terrifically successful at the local 
level. More often, it is exemplary of the experiences of many American 
Indians, Alaska Natives, and Native Hawaiians: though the Act was 
created for their benefit and to rectify a moral wrong, most Native 
people have been unable to realize the law's potential. They have been 
forced to immediately learn a western process and bureaucratic language 
and to do so at the most personal and profound of times--at the time 
they must identify their dead and the sacred objects and cultural 
patrimony that have been removed from their communities.
First In-Depth Review of How Federal Agencies are Implementing NAGPRA
    In 2006, the National Park Service National NAGPRA Program awarded 
a grant to the Makah Tribe to assess how the Act has worked over that 
time and whether there remain significant barriers to the effective 
implementation of the Act; the Tribe worked closely with NATHPO in its 
research and production. The resultant report focuses on Federal agency 
participation in and compliance with the Act, including such 
overarching issues as completing notices of inventory, determining 
cultural affiliation, developing and implementing agency policies on 
tribal consultation, and resources to assist the agency meet its 
responsibilities under the Act.
    The Makah-NATHPO Report, ``Federal Agency Implementation of the 
Native American Graves Protection and Repatriation Act,'' was the 
result of a two-year research project and was released in August 2008. 
The report is the work of five researchers who conducted original 
research for this report, analyzed existing public information, and 
conducted two national surveys to determine how the Act is being 
implemented around the country and how Federal agencies and Native 
Americans are working together to achieve the goals that the U.S. 
Congress established for the Act. The report was peer-reviewed by 11 
individuals representing Indian tribes and NAGPRA practitioners, 
academics who work in this field, and federal agency officials. We are 
confident in the research, conclusions and recommendations that are 
presented in the 2008 report.
    This study was undertaken to prepare a substantive foundation for 
assessing Federal agency implementation of NAGPRA and where 
improvements might be made. The internal processes and effectiveness of 
the National Park Service (NPS) National NAGPRA Program or Park NAGPRA 
Program were not examined or evaluated. We are happy to report that 
several recommendations in the report have already been implemented or 
are underway in the year since the report was published.
    In brief, the research team examined a national process of 
consultation and information sharing that has led to individual success 
stories at the local level. It is clear from the work that went into 
the report that in the almost 20-year history of the Act, it has 
enabled some measure of success in the efforts of Native people to 
secure the repatriation of Native American human remains and cultural 
objects, but much work remains.
    Again, one of the main goals of the report was to identify where 
improvements might be made in the implementation of the Act and to 
present the information in terms of findings and recommendations. 
Attached to this written statement are the recommendations that were 
developed. For this morning's hearing, I will highlight and discuss 
just a few.
Report Recommendations
    The report recommendations were presented in two categories: 
general themes and specific recommendations. Summarizing the General 
Theme recommendations with a brief description are as follows:
    1.  Knowledge of process and responsibilities: No full-time NAGPRA 
staff working at the Federal agency level; lacking a list of the NAGPRA 
contact person for each Federal agency; need and request for NAGPRA 
training
    2.  Access to Information: burden has been place on Native people 
to determine where and if a Federal agency has Native American remains 
and cultural objects; withdrawal of pending Notices of Inventory 
Completion is a barrier and/or challenge to Native people; 
identification of human remains and cultural objects as ``culturally 
unidentifiable'' that places those classified remains and objects 
beyond the reach of Native people
    3.  Consultation: Federal agencies don't know with whom to consult 
and Native people are not always welcomed when they seek to have a 
Federal agency engage in consultation
    4.  Available Resources: Currently available resources fall far 
short of what is needed and Native governments and organizations are 
unable to maintain a robust NAGPRA program effort needed to assure 
protection of their cultural resources. Also, congressionally 
appropriated funds have NAGPRA grants to tribes and museums has 
decreased in the past five years.
    5.  Standards: What constitutes correct information and who sets 
the standards for a Notice of Inventory Completion; when has a Federal 
agency complied with the Act per the notification process; how much 
evidence is necessary for an accurate determination of cultural 
affiliation; when are the remains of an ancestor considered to be 
``culturally unidentifiable;'' no publicly available standards on 
``tribal consultation'' and ``cultural affiliation''
    6.  Training: develop and offer online training and online 
instructional materials; develop user-friendly databases
    There are eight (8) specific recommendations as follows:
    1.  Statutory: amend the definitions section of the Act
    2.  Regulatory: Establish an inter-agency NAGPRA Implementation 
Council within the executive branch, possible the Office of Management 
and Budget, that would ensure and coordinate compliance, refer non-
compliance and remedies for non-compliance with the Act, train federal 
officials, have a dispute resolution role, develop uniform NAGPRA 
consultation guidelines for all Federal agencies and publish in the 
Federal Register
    3.  Oversight and Enforcement:
         a.  issue and publish in the Federal Register the NAGPRA 
        contacts and policies for each Federal agency;
         b.  create a public database that lists each Federal agency 
        repository for curation purposes, including location and 
        contact information;
         c.  demonstrate via publication in the Federal Register that 
        consultation has occurred with an affected Native American/s; 
        and
         d.  revise and improve the Culturally Unidentifiable Native 
        American Inventories Database (CUNAID) including the following:
             i.  improve database search functions
             ii.  show documentation as to the pre-decisional 
            consultation has occurred
             iii.  establish an open and transparent process for why 
            human remains and cultural objects meet the ``compelling 
            scientific interest'' category
             iv.  more frequent updates of the database
             v.  Native American input in developing new information to 
            be included in the database
             vi.  Require additional information to be included in the 
            database, such as description of study beyond counting and 
            sorting, original location of burial site, full address of 
            current location of human remains and objects; and title 
            and detailed contact information of the office responsible 
            for writing the database record
    4.  General NAGPRA Program: develop a reporting system that 
demonstrations success
    5.  NAGPR Review Committee: develop a database of disposition case 
that have come before the Committee; publicize upcoming publications of 
Notice of Inventory Completion and a list of notices that are awaiting 
publication
    6.  Memoranda of Agreement or Programmatic Agreements: develop a 
standard MOA or PA
    7.  Adequate Funding for the Implementation of NAGPRA: appropriate 
adequate funding for Indian tribes, Native Hawaiian organizations, and 
Federal agencies, including training opportunities, and the Inter-
Agency Council and additional responsibilities for the NPS
    8.  Compliance Audits: request that the Government Accountability 
Office conduct an audit of Federal agency compliance with the Act; and 
the Inspector General of each Federal agency should investigate any 
non-compliance with the Act that his identified by the GAO audit.
    There was one section, Future Areas of Research, which recommended 
the following:
    1.  Evaluate museum compliance with NAGPRA, similar to this Federal 
agency research
    2.  Evaluate the role of the Smithsonian Institution in the 
repatriation process
    3.  Evaluate the NPS National NAGPRA Program for efficiency, 
staffing levels and areas to improve
    4.  Examines how the unassociated funerary objects have been dealt 
with in the repatriation process
    5.  Examines how the Future Applicability (Sec. 10.13) provisions 
are being implemented
    6.  Examine the background process that led a Federal agency to 
determine whether human remains and associated funerary objects was to 
be entered into the CUNAID, including the process used in working with 
and notifying tribes of the remains and objects.
Are There Enough Resources?
    One of the issues that was studied and discussed in the 2008 report 
was whether or not there were adequate resources to comply with the 
Act. We sought input from both Federal agency officials and from 
representatives of Indian tribes and Native Hawaiian organizations. Our 
work determined that over the past 19 years, the repatriation process 
has evolved to be a time consuming and expensive endeavor and even 
then, the repatriation process does not ensure that remains or cultural 
objects will be repatriated. Two possible solutions are (1) to infuse 
the program with much more federal support; and/or (2) to improve the 
process.
    One of the major problems identified by the Makah-NATHPO study was 
the lack of Federal staff dedicated exclusively to carrying out 
compliance activities. The 2008 report recommend that additional 
appropriations be made to ensure that each agency has adequate staff. 
Related to this, was the lack of training for Federal staff who are 
assigned responsibility for NAGPRA implementation. We recommend that 
additional funds be appropriated to ensure that Federal officials 
receive adequate training and staffing levels, which they have 
identified as a need.
    Since 1994, the U.S. Congress has appropriated funds for grants to 
museums and Indian tribes to carry out NAGPRA activities. Those funds 
have been inadequate to effectively address the mandates of the Act. 
Insufficient resources prevent Native Americans from maintaining robust 
NAGPRA programs and the needed effort to ensure protection and 
repatriation of a tribe's cultural resources. NAGPRA grants to tribes 
and museums--which are one of the only sources of funding for Native 
Americans in the field of cultural preservation--have decreased in the 
past five years. An assessment of grants made between 1994 and 2007 
indicate that proportionately fewer of the funds appropriated for this 
purpose are actually being allocated for grants. We recommend an 
increase in the amount appropriated for grants, and that Congress 
ensure that these funds are only used for grants and not for 
administrative activities. If additional funds are needed for 
administrative activities, there is a separate line item to which 
additional funds could be made available.
Are the Law and Regulations Adequate or is Work Needed?
    NAGPRA directs Federal agencies and museums to consult with Native 
governments and Native cultural practitioners in determining the 
cultural affiliation of human remains and other cultural items. Prior 
to passage of the Act, House Report 101-877 defined the term 
``consultation,'' but the Department of the Interior decided not to 
include a definition when it promulgated regulations. As a result, 
there has been a great deal of confusion as to what exactly is 
required. The 2008 report recommended that the Department of the 
Interior revise the current regulations to define consultation 
consistent with the language in the House Report or, if the Department 
declines to do so expeditiously, the Congress amend the Act to include 
a specific definition of consultation.
    NAGPRA directs each museum and Federal agency to complete an 
inventory of Native American human remains and associated funerary 
objects in their possession or control by 1995, with notification of 
cultural affiliation provided to the appropriate Indian tribe or Native 
Hawaiian organization by 1996. The Secretary of the Interior was 
directed to publish a copy of each notification in the Federal 
Register. Our research found that ten years later, a large number of 
these notices have still not been published and the human remains and 
associated funerary objects been not been listed on the culturally 
unidentifiable database, thus leaving them effectively hidden from the 
repatriation process. It is particularly disturbing that a number of 
these situations involve units of the National Park Service--the agency 
currently delegated by the Secretary of the Interior with the 
responsibility for implementing the Act. We recommend that, as for all 
federal programs, an open and transparent process needs to be 
instituted for the knowledge and use by all.
Culturally Unidentifiable Native American Inventories Database
    NAGPRA directs the National NAGPR Review Committee to compile an 
inventory of culturally unidentifiable human remains that are in the 
possession or control of each museum or Federal agency. In 1990, the 
Congressional Budget Office estimated that the remains of about 
100,000-200,000 Native American individuals were stored in the nation's 
museums and Federal repositories. The National NAGPRA Program has 
reported that as of March 31, 2009, museums and Federal agencies had 
published 1,220 notices of inventory completion accounting for the 
remains of 37,998 individuals and 985,788 associated funerary objects. 
To date, about 38,000 ancestors have been returned using the NAGPRA 
cultural affiliation process--which is roughly 19% of 200,000--or the 
repatriation at a rate of about one percent (1%) per year.
    Our research for the 2008 report found that the current database 
does not accurately reflect the number of culturally unidentifiable 
human remains in the possession or control of Federal agencies. 
Further, the currently database does not provide adequate information 
about how to proceed if the database includes human remains of interest 
to an Indian tribe or Native Hawaiian organization. For example, there 
is currently no record of whether or not Native Americans have been 
contacted or consulted, there are no serial numbers or a way to 
determine which record is being referenced when seeking additional 
information, and there is no ``user guide'' for how to use the 
database.
    Based on our work for the 2008 report and in response to our 
members, NATHPO sponsored in August 2009 the first organized 
opportunity and open call for tribal representatives to come together 
to review and discuss the important information contained in the 
database. We provided the attendees with a copy of the database and a 
template to use for requesting additional information, which is their 
right by law. This was just a start in working with this important 
database and we hope to continue this initiative. Attached is the one-
page summary of this database and the workshop.
Conclusion
    NATHPO has been working to overcome historic practices and behavior 
toward Native people. We support local tribal efforts for control of 
their respective histories and culture. We support a tribal agenda that 
goes beyond merely educating and reacting to situations that are many 
times beyond our control. Native Americans have many reasons to be 
proud of their work in seeking the return of their ancestors and 
cultural objects and we hope that the Committee will continue 
supporting these local efforts and will have more opportunities to 
visit Indian country and hear from Native people on this important Act.
                                 ______
                                 

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VIII.  RECOMMENDATIONS [from the report, ``Federal Agency 
        Implementation of the NAGPRA'']
A. General Themes
    i. Knowledge of Process and Responsibilities
    One of the prominent issues that emerges from the results of both 
Federal agency surveys and the surveys of Native governments and 
organizations is the need for more training so that Federal agency 
personnel are aware of their agency's responsibilities under the Act, 
museum personnel are aware of their museum's responsibilities under the 
Act, and Native governments and organizations are aware of their rights 
and responsibilities under the Act.
    The survey results would suggest that within the Federal agencies, 
seldom is there a full-time employee whose principle assignment is to 
carry out the agency's responsibilities under the Act. More often, if 
there is an employee who is tasked with assuring that the agency is in 
compliance with the mandates of the Act, that person's first 
responsibility is to assure compliance with section 106 of the National 
Historic Preservation Act. A number of the Federal agencies responding 
to the survey indicated that the agency has a designated Federal 
historic preservation officer, who may or may not devote part of his or 
her time to NAGPRA duties. Several agency respondents reported that 
they were not certain who had NAGPRA responsibilities within their 
agency, and others placed the role of determining cultural affiliation 
in the hands of the National NAGPRA Program through the publication of 
Notices of Inventory Completion.
    It is perhaps thus not surprising that Native government and Native 
organization respondents reported that they have experienced difficulty 
in finding anyone within a Federal agency that can tell them with whom 
they should be addressing NAGPRA-related issues. Some Native 
governments report that when they contact Federal agencies with the 
objective of gaining an understanding of how the repatriation process 
works within that agency, there is no one who can tell them what the 
repatriation process entails or how to go about initiating a request 
for repatriation.
    ii. Access to Information
    No less important is the commonly-reported fact that unless a 
tribal government or Native organization has been contacted directly by 
a Federal agency or museum, they do not know how they would learn that 
a Federal agency or museum may have the human remains of their 
relatives, or associated funerary objects, sacred items or objects of 
cultural patrimony.
    Some tribes report having had to resort to relying upon anecdotal 
evidence or reports that someone has seen something in a museum that 
looks like it would have been associated with that tribe's cultural and 
religious practices. Others have attempted to contact every Federal 
agency and every museum known to possess Native American collections. 
Such time-intensive, laborious and costly undertakings could have been 
rendered unnecessary if the policy and intent of the Act--namely to 
place the burden of reporting on those institutions that have 
possession of Native American collections--had been fully and 
effectively realized.
    As referenced above, the Act does provide for a system of 
notification, but the integrity of the notification process is only as 
sound as the information that is provided to the Interior Department. 
The Act does not address how the Department would go about determining 
whether other Federal agencies or museums may have Native American 
collections for which inventories and/or summaries have not been 
submitted. In late 2007, several museums and National Park units 
withdrew many pending Notices of Inventory Completion that would have 
publicly announced the existence of culturally-affiliated Native 
American human remains and associated funerary objects, and thereby 
further frustrated the efforts of Native people to identify where human 
remains and cultural objects could be found.
    In addition, it is well known that a common practice of agencies 
and museums is to err on the side of caution when the cultural 
affiliation of human remains or associated funerary objects cannot be 
definitively determined. In this context, caution is exercised by 
reporting that such remains or objects are culturally unaffiliated. 
While such caution is understandable, as discussed in Section III.C. of 
this report, the classification of remains or associated funerary 
objects as culturally-unidentifiable often has the effect of placing 
those remains or objects so classified beyond the reach of the Act's 
preference for repatriation of Native American human remains and 
associated funerary objects.
    Native governments and organizations ask whether notice has been 
published in the Federal Register for all remains and associated 
funerary objects that have been reported as culturally unaffiliated, 
and apparently the answer is that they have not. Responses to tribal 
surveys as well as an in-depth analysis of the ``Culturally 
Unidentifiable Native American Inventories Pilot Database,'' maintained 
by the National NAGPRA Program Office and set forth in Section III.C. 
of this report would indicate that the database is difficult to use and 
has limited research and cross referencing capabilities.
    iii. Consultation
    As outlined earlier, NAGPRA contemplates and indeed directs that 
Federal agencies and museums consult with Native governments and Native 
cultural practitioners in determining the cultural affiliation of human 
remains and other objects and items within their respective Native 
American collections. Federal agencies indicated that an element of 
their success in working with Native Americans in complying with the 
Act is that they know with whom to consult.
    The Act's regulations also provide that consultation is to be 
carried out as part of the intentional excavation or inadvertent 
discovery of human remains or objects. Written plans of action must be 
the product of consultation, and when re-interments are to take place, 
consultation in how such re-interments or associated repatriations are 
to take place is also anticipated.
    Despite these statutory and regulatory requirements, a review of 
both Federal agency and Native survey responses suggests that Federal 
agency personnel often don't know with whom they should be consulting, 
and Native governments are not always welcomed when they seek to have a 
Federal agency or a museum engage in consultation. In fact, survey 
results indicate that there is substantial room for improvement in the 
area of consultation.
    iv. Available Resources
    Tribal survey results suggest that Native Americans place a high 
value on the capacity to repatriate the remains of their relatives, 
ancestors, sacred objects and objects of cultural patrimony, but that 
the resources which are currently available to effect these 
repatriations fall far short of what is needed. And while the Congress 
has appropriated funds to support the NAGPRA program, overall, those 
funds have also been inadequate to effectively address the mandates of 
the Act.
    Insufficient resources also prevent Native governments and 
organizations from maintaining a robust NAGPRA program effort and 
retaining one or more people to assure protection of a tribe's cultural 
resources. NAGPRA grants to tribes and museums has decreased in the 
past five years, and an assessment of grants made between 1994 and 2007 
indicates that proportionately fewer of the funds appropriated for this 
purpose are actually being allocated for grants (see Appendix C). 
Clearly, Federally-appropriated resources have been insufficient to 
address the needs of the repatriation process. It is unknown what the 
total need for NAGPRA training is at all levels and for both Federal 
agencies and Native people.
    An examination of fiscal support at the Federal agency level may 
show parallel lack of support, both in terms of staff support and 
training for new and current staff tasked with the responsibility to 
comply with the Act.
    v. Standards
    Improving information sharing and establishing standards are 
important components of the repatriation process and the following 
remain unclear:
      What constitutes correct information and who sets those 
standards;
      What format is to be used for a Notice of Inventory 
Completion and when has a Federal agency or museum complied with the 
Act per the notification process;
      How much evidence is necessary for an accurate 
determination of cultural affiliation;
      When are the remains of an ancestor considered to be 
``culturally unidentifiable.''
    ``Tribal consultation'' and ``cultural affiliation'' are not easily 
understood and agreed upon processes. There are also points in the 
process where exclusion from these two important steps prevents active 
engagement of an affected Indian tribe or Native Hawaiian organization. 
There are no publicly available standards on what constitutes meeting 
the requirement to consult with an affected Indian tribe or Native 
Hawaiian organization. Who sets these standards is also of concern.
    vi. Training and Technology
    Many of the challenges identified by the research, as well as other 
identified barriers to the effective implementation of the Act, could 
be addressed and possibly overcome through the provision of training 
for Federal agency, museum, and Native government and organization 
personnel.
    Federal agency survey responses suggest that those Federal agency 
personnel who are charged with carrying out NAGPRA responsibilities are 
frequently new or reassigned, so that while there may have been some 
training on the Act for those initially tasked with implementing the 
agency's responsibilities, training has not been available to their 
successors. The same dynamic appears to be prevalent in Native 
communities, where the unmet need for training is further exacerbated 
by the lack of resources to gain access to training opportunities.
    However, with the widespread advent of technological tools, there 
are solutions that could be applied to address the need for more 
knowledge about the Act, to build the capacity for access to 
information, to facilitate consultation, and to enable expanded 
training opportunities.
    For instance, funds expended on travel of Federal agency personnel 
to training sites might be reallocated to the development of on-line 
instructional materials that would be accessible either directly or 
made available in CD and DVD formats. The development and maintenance 
of user-friendly databases hold the potential to greatly expand the 
access by Native governments and organizations to inventory and summary 
information held by the Interior Department. Computer software programs 
that enable users with differing levels of security protection to have 
appropriate access to confidential or proprietary information foster 
both transparency and accountability.
    Most Native groups do not have the means to travel to regional hubs 
to take advantage of training opportunities where such opportunities 
exist, nor do they have the means to travel to the Nation's capital to 
access data that is maintained in paper files. Federal agencies also 
lack the resources to send Federal agency personnel out to areas of 
Native America for the critical purpose of consultation that is 
required under the Act, or to send Federal agency personnel to training 
sessions that are held at considerable distances from their assigned 
duty stations.
    Many of the recommendations from both Federal agencies and Native 
groups can be achieved by building on-line, secure data systems that 
are accessible to the relevant users and their needs for information. 
Recent developments in computer software programs afford different 
users access to information that is compatible with statutory and 
regulatory requirements, while ensuring the security of proprietary and 
confidential materials. In this manner, Federal funding can be employed 
to maximize cost-effectiveness as well as to achieve both transparency 
and accountability.
B. Specific Recommendations
    In a climate in which the funding of Federal programs can be 
anticipated to fall short of what is needed to assure full compliance 
with statutory and regulatory requirements, creative and cost-effective 
alternatives must be identified.
1. Statutory
    Amend the ``Definitions'' section of NAGPRA to clarify application 
to human remains so that ``Native American'' means of, or relating to, 
a tribe, people, or culture that is or was indigenous to any geographic 
area that is now located within the boundaries of the United States.
2. Regulatory
    Establish an Inter-Agency NAGPRA Implementation Council within the 
Executive Branch (possibly the Office of Management and Budget) that 
would:
a. Assure Compliance within each Federal Agency
    The Council should be vested with the authority to assure that each 
Federal agency with land management responsibilities or otherwise 
subject to the provisions of the Act is complying with the Act. The 
Council should identify instances in which creative approaches to 
compliance have proven to be effective for purposes of advising Federal 
agencies of useful models for compliance.
b. Coordinate Compliance across all Federal Agencies
    The Council should also oversee coordination of Federal agency 
activity to assure compliance with the Act's requirements across 
Federal agencies. The Council should maintain a database of compliance 
with NAGPRA across all Federal agencies including information on the 
compliance record of each Federal agency.
c. Refer Non-Compliance and Remedies for Non-Compliance
    The Council should establish a mechanism for the referral of 
complaints concerning a Federal agency's lack of compliance to the 
Inspector General of each Federal agency, and the Council should direct 
the National NAGPRA Program Office to publish relevant information on 
the referral process as well as information identifying the designated 
agent within each Federal agency with whom complaints should be filed 
in the Federal Register. The Council should also establish remedies for 
non-compliance with the statutory and regulatory requirements and the 
Council should direct the National NAGPRA Program Office to publish the 
remedies in the Federal Register.
d. Train
    The Council, in coordination with the National NAGPRA Program 
within the National Park Service, should assure that all Federal agency 
personnel charged with responsibilities under the Act have the 
necessary training to effectively carry out their responsibilities 
under the Act.
e. Dispute Resolution Role
    The Council should serve as a forum for the resolution of disputes 
amongst Federal agencies.
f. Uniform Consultation Guidelines
    Following direct, meaningful and pre-decisional consultation with 
Indian tribes, Alaska Native villages and Native Hawaiian 
organizations, the Council should develop a set of uniform NAGPRA 
consultation guidelines for all Federal agencies. The Council should 
direct the National NAGPRA Program Office to publish the consultation 
guidelines in the Federal Register.
8. NAGPRA Regulations
    The Council shall develop and maintain one set of regulatory 
language for all provisions of the Act.
3. Oversight and Enforcement of Statutory Requirements
a. Training
    Establish a program to train Federal agency personnel who are 
assigned responsibility for NAGPRA implementation by each Federal 
agency including not only statutory and regulatory requirements but 
also requirements for pre-decisional consultation associated with 
cultural affiliation determinations and consultation associated with 
the publication of notices and with repatriation of cultural items as 
defined by the statute.
     i.  As part of the training effort, Native people with extensive 
NAGPRA experience in representing their tribes or Native Hawaiian 
organizations at NAGPRA and other cultural resource consultations, need 
to become a part of the National NAGPRA Program's training component. 
All official training held thus far (for Native people or for 
institutions) has been carried out by non-Native people, and while this 
training has provided some benefits, Native people report that there is 
still a significant need for education amongst Federal agency personnel 
when Native people seek to repatriate remains. High turnovers in 
NAGPRA-responsible staff at both the tribal and Federal levels also 
underscore the need for the permanent creation of a training team 
comprised of experienced Native NAGPRA representatives.
     ii.  In consultation with Indian tribes, Alaska Native villages, 
and Native Hawaiian organizations, the National NAGPRA Program Office 
should develop training modules that are accessible through the 
Internet, or which can be made available to Native groups in compact 
disc or DVD format.
b. Issue and Publish NAGPRA Contacts and Policies within each Federal 
        Agency
    A policy for the implementation of NAGPRA's statutory and 
regulatory requirements, including consultation requirements, should be 
promulgated by each Federal agency, and each Federal agency should 
submit its policy to the National NAGPRA Program Office for publication 
in the Federal Register.
    Create a database that would list each Federal agency repository, 
including its location and NAGPRA contact.
c. Demonstrate Consultation with Native Americans
    The process that each agency proposes to follow for pre-decisional 
consultation associated with the determination of cultural affiliation 
of human remains and cultural items should be submitted to the National 
NAGPRA Program Office for publication in the Federal Register.
d. ``Culturally Unidentifiable Native American Inventories Pilot 
        Database''
     i.  The ``Culturally Unidentifiable Native American Inventories 
Pilot Database'' should be revised to enable access to information 
across all Federal agencies so that an inquiry as to whether any agency 
has human remains or cultural items from a particular area can be 
pursued without having to search the records of each Federal agency.
     ii.  The National NAGPRA Program Office should require the 
submittal of information by Federal agencies documenting what pre-
decisional consultation was undertaken to determine cultural 
affiliation of human remains and funerary objects listed in the 
database.
    iii.  The National NAGPRA Program Office should require the 
submittal of information by the Federal agencies documenting that human 
remains or associated funerary objects that the Federal agencies seek 
to retain for purposes of scientific study to ensure that the agency 
has met the statutory standard of proving that there is a ``compelling 
scientific interest'' in the retention of the remains or funerary 
objects that are identified in the database.
     iv.  The National NAGPRA Program Office should provide more 
frequent updates of the database, as well as other databases 
recommended in this report. The National NAGPRA Program Office should 
afford tribes and Native Hawaiian organizations an opportunity to 
provide input in developing new questions for the database.
     v.  The National NAGPRA Program Office should require the 
provision of uniform information to be contained in the database 
including: (1) a description of any study beyond counting, sorting, and 
original location of the burial of human remains or funerary objects, 
whether used to determine cultural affiliation or not, and whether or 
not the statute's standard regarding extra-legal study had been met and 
by whom; (2) the full address of the current location of the 
culturally-unidentifiable human remains and associated funerary 
objects; (3) the title and detailed contact information of the office 
responsible for writing the database records for each Federal agency; 
and (4) the title and detailed contact information for each individual 
who is ultimately responsible for NAGPRA compliance for each Agency.
4. General NAGPRA Program
a. Inventory of Repatriation Process Data
    Under current practice, there is no reporting system in place by 
which Federal agencies, museums, Indian tribes or Native Hawaiian 
organizations can submit information about the actual repatriation of 
human remains, associated funerary objects, sacred objects, or objects 
of cultural patrimony. Accordingly, the Congress has no means of 
periodically assessing the effectiveness with which the Act's goals are 
being implemented.
     i.  Establish a process by which Federal agencies, museums, Indian 
tribes and Native Hawaiian organizations can submit electronic data to 
the National NAGPRA Program Office identifying the number of remains or 
objects that have been the subject of a completed repatriation.
     ii.  Develop an inventory of all repatriations that have been 
completed under the authority of the Act, and establish a database to 
house repatriation information. The National NAGPRA Program Office 
should require signed statements from each Federal agency and 
institution that document the repatriation of human remains and 
cultural items. The inventory should also contain a record of the 
tribes or Native Hawaiian organizations that have received repatriated 
remains or cultural items under the authority of NAGPRA. Such a 
database should provide protection of proprietary information but 
should also enable access to the number of repatriations in each 
category (human remains, associated funerary objects, sacred objects, 
objects of cultural patrimony, unassociated funerary objects).
5. NAGPR Review Committee
    a.  The National NAGPRA Program Office, in consultation with the 
NAGPR Review Committee, should develop a database of all cases that 
have come before the Review Committee. Information in the database 
should identify which cases have been resolved, the manner in which 
they were resolved, and any outstanding cases that have yet to be 
resolved.
    b.  The National NAGPRA Program Office should maintain an updated 
list of any upcoming publications of Notices of Inventory Completion on 
its website, along with a list of Notices that are awaiting 
publication.
    The National NAGPRA Program Office should maintain a database that 
contains information on the location of, as well as possession and 
control of, all Native American human remains, funerary objects, and 
other cultural items.
6. Memoranda of Agreement or Programmatic Agreements
    The National NAGPRA Program Office, in consultation with Indian 
tribes, Alaska Native entities, Native Hawaiian organization, and 
Federal agencies, should develop a standard memorandum of agreement or 
a programmatic agreement that would provide for Native groups to assume 
stewardship of a site or human remains in the event of an inadvertent 
discovery of a Native burial on Federal lands. One example of a 
programmatic agreement is the 2004 Programmatic Agreement reached 
between 18 Missouri River Tribes, the Corps of Engineers, the National 
Trust for Historic Preservation, the Advisory Council on Historic 
Preservation, and the State Historic Preservation Officers for Montana, 
North Dakota and South Dakota and Nebraska.
7. Adequate Funding for the Implementation of NAGPRA
    a.  The Congress should appropriate adequate funding to assure the 
effective implementation of the Act at the tribal level. Many Native 
groups do not have the resources to secure training in repatriation 
under the Act, or the resources to carry out repatriation activities. 
In addition, many of the NAGPRA representatives at the tribal level are 
elderly, and the training of members of the younger generations is 
vital if the Act is to be effective implemented in the future.
    b.  The Congress should also appropriate adequate funding to assure 
the effective implementation of the Act at the Federal level, including 
funding for the activities of the Inter-Agency Council and the 
additional responsibilities of the National NAGPRA Program Office 
recommended in this report.
8. Compliance Audits
    a.  The Congress should request that the Government Accountability 
Office (GAO) conduct an audit of Federal agency compliance with the 
statutory and regulatory requirements of NAGPRA for all relevant 
Federal agencies. Such an audit could include:
         i.  The mechanisms each Federal agency employs for assuring 
        that all human remains and cultural items in the possession or 
        control of the agency have been reported to the National NPS 
        NAGPRA Program Office, and the effectiveness of such 
        mechanisms;
         ii.  The means by which the National NPS NAGPRA Program Office 
        determines that each Federal agency has fully complied with the 
        mandates of the NAGPRA statute and regulations;
         iii.  The identification of the Federal agency or program 
        office within a Federal agency that is best equipped to provide 
        information to the Congress on a regular basis of how many 
        human remains and cultural items have been repatriated under 
        the authority of the NAGPRA statute and regulations, as well as 
        an assessment of the overall effectiveness with which the 
        provisions of the Act have been implemented, as well as what 
        barriers exist to the effective implementation of the Act;
         iv.  The identification of an entity within the Executive 
        branch that has the authority or can be vested with the 
        authority to oversee and assure the compliance of each Federal 
        agency with the NAGPRA statute and regulations;
         v.  The identification of secure data system alternatives that 
        would enhance public access to the data collected and 
        maintained by the National NPS NAGPRA Program Office while 
        still assuring the security and confidentiality of such data, 
        including the identification of data system capacities to 
        provide differing levels of access to confidential information;
         vi.  The identification of the most cost-efficient manner of 
        providing training to Federal agency employees charged with 
        assuring compliance with the NAGPRA statute and regulations;
         vii.  The identification of the most cost-efficient manner of 
        providing training for Indian tribes, Alaska Native entities, 
        and Native Hawaiian organizations on the NAGPRA statute and 
        regulations; and
        viii.  The identification of a reporting system that would 
        enable the oversight entity within the Executive branch 
        referenced in subparagraph iv of this paragraph to refer 
        potential enforcement actions for failure to comply with the 
        NAGPRA statute to the relevant law enforcement agency or 
        agencies.
    b.  The Inspector General of each Federal agency should investigate 
any non-compliance with the Act that is identified by the Government 
Accountability Office audit.
C. Future Areas of Research (not listed in priority order)
    1.  Evaluate museum compliance with NAGPRA, with the same goals as 
to how this research project was conducted.
    2.  Evaluate the role of the Smithsonian Institution, including the 
intersections of National Park Service NAGPRA and the law governing the 
Smithsonian's repatriation activities, and Federal agency collections 
that are now housed permanently or temporarily at the Smithsonian.
    3.  Evaluate the NPS National NAGPRA Program for efficiency, 
staffing levels, and areas to improve
    4.  Examine how unassociated funerary objects have been dealt with 
in the repatriation process. Research work on this project focused on 
cultural affiliation and associated funerary objects, and a thorough 
study of how objects became ``unassociated'' or if there is means to 
hasten research time to associating these objects would be of benefit 
to the local Native community.
    5.  Examine how the Future Applicability (Sec. 10.13) provisions 
are being implemented.
    6.  Examine the background process that led a Federal agency to 
determine whether human remains and associated funerary objects was to 
be entered into the ``Culturally Unidentifiable Native American 
Inventories Pilot Database,'' including the process used in working 
with and notifying tribes of the human remains and associated funerary 
objects.
                                 ______
                                 
    The Chairman. Thank you.
    Chairwoman Bruning?

    STATEMENT OF SUSAN B. BRUNING, CHAIRWOMAN, REPATRIATION 
    COMMITTEE OF THE SOCIETY FOR AMERICAN   ARCHAEOLOGY,   
                       SOUTHLAKE,   TEXAS

    Ms. Bruning. Good morning. Thank you, Mr. Chairman. My name 
is Susan Bruning. I am Chair of the Repatriation Committee for 
the Society for American Archaeology, and thank you as well to 
the Ranking Member Hastings and to the rest of the Committee 
for welcoming us here today. NAGPRA has accomplished a great 
deal over the past 19 years. Extensive repatriation of human 
remains and other cultural items from both museum collections 
and from recent excavations has occurred, and it continues to 
occur through much effort and collaborative work among tribes, 
museums and Federal agencies.
    NAGPRA has also led to innovative solutions for other 
disposition needs, and it has facilitated the forging of 
important and long-lasting relationships among the parties 
involved. The Society believes that these successes are due to 
the fact that NAGPRA and the processes it creates are founded 
upon a carefully crafted balance among Native Americans, 
museums and scientists who are involved, and that the parties 
achieving these successes share mutual respect for the varied 
interests at stake and for the law that underpins these 
activities.
    The crux of NAGPRA is to enable Native American tribes to 
locate and determine appropriate resolutions for the future 
care and repose of ancestral human remains and important 
cultural items that have been removed from their places of 
origin. NAGPRA also facilitates opportunities to learn about 
the past, as tribal experts and scholars work together to 
investigate and understand relationships of shared group 
identity between the past and the present.
    The way in which Congress chose to operationalize this 
search for a reasonably close cultural relationship is through 
the concept of cultural affiliation. Cultural affiliation is 
the foundation upon which this balance of interests rests. It 
provides a mechanism that enables the descendant communities to 
obtain control over the disposition of their ancestral remains 
and important cultural items, where a reasonably traceable 
relationship to an earlier group can be established.
    Where such a relationship has not yet been established, the 
law enables the search for cultural affiliation to continue and 
it protects those items and information for the benefit of 
future generations. The Society has worked diligently to 
support a balanced and fair implementation of the Act with the 
explicit language and consistent with the legislative history, 
as well, of the law. In recent years, however, the Society has 
had and has expressed growing concern about imbalance in 
certain areas of the law's implementation.
    For instance, in the proposed rule drafted by the national 
NAGPRA office relating to disposition options for culturally 
unidentifiable human remains, the proposed regulation suggests 
that quick and complete removal of human remains from 
curatorial institutions is more important than allowing time 
for the parties to continue working together to seek knowledge 
and understandings about relationships of shared group 
identity.
    The Society supports processes that allow parties time and 
flexibility to work together without the pressure of arbitrary 
deadlines as they develop knowledge about cultural connections 
and develop options for caring for human remains and cultural 
objects that have been removed from their places of origin. 
Issues such as the need to check for toxic contaminants that 
are present in some curated items highlights the need for 
tribes, museums and scientists to work together thoroughly and 
thoughtfully.
    The best solutions are customized. They take time, they 
take resources, they take effort, and they take trust, and 
trust comes through relationship-building and ground-up 
collaboration among parties who work together to seek 
appropriate and well-informed solutions. The many productive 
relationships that have been established over nearly 20 years 
of joint effort among those with a diversity of interests is 
best served by ensuring that those implementing the law and any 
forthcoming changes to the law support the balance of interests 
that is built into NAGPRA.
    Those seeking to carry out the purposes and the spirit of 
NAGPRA need to work together with transparency of purpose and 
without arbitrary deadlines in order to achieve sound and 
respectful solutions. On behalf of the Society for American 
Archaeology, thank you for the opportunity to appear here 
today. I would be happy to answer any questions.
    [The prepared statement of Ms. Bruning follows:]

   Statement of Susan B. Bruning, Chair, Committee on Repatriation, 
                    Society for American Archaeology

    Mr. Chairman, the Society for American Archaeology thanks you, 
Ranking Member Hastings, and the Committee on Natural Resources for the 
opportunity to testify on the Native American Graves Protection and 
Repatriation Act (NAGPRA).
    The Society for American Archaeology is the leading organization of 
professional archaeologists in the United States. Since its founding in 
1935, the Society has been dedicated to the research, interpretation, 
and protection of the archaeological heritage of the Americas. With 
more than 7,000 members, the Society represents professional 
archaeologists in colleges and universities, museums, government 
agencies, and the private sector. The Society has members in all 50 
states, as well as many other nations around the world.
    The Society's involvement with NAGPRA precedes the law's enactment. 
It consulted extensively with and testified before Senate and House 
Committees to build a coalition of scientific and museum organizations 
and Native American groups that strongly supported NAGPRA's enactment. 
Over the years, the Society has closely monitored the law's 
implementation and provided input to the Department of the Interior, 
the NAGPRA Review Committee, and Congressional oversight panels. The 
Society is committed to supporting effective and timely implementation 
of NAGPRA.
    NAGPRA has accomplished a great deal over the past nineteen years. 
Extensive repatriation of human remains and other cultural items under 
NAGPRA, from both museum collections and recent excavations, has 
occurred and continues to occur through mutual agreements among tribes, 
museums, and Federal agencies. NAGPRA has resulted in many successful 
repatriations, has led to innovative solutions for other disposition 
needs, and has facilitated the forging of important and lasting 
relationships among tribal, museum, and scientific stakeholders.
    The Society believes that these successes are due to the fact that 
NAGPRA and the processes it created are founded upon a carefully 
crafted balance among Native Americans, museums, and scientists. The 
compromises reflected in NAGPRA's provisions were reached through 
extensive discussion among parties on all sides of the issue. Senator 
McCain's remarks on the day of the Senate's passage of NAGPRA make this 
clear:
        The passage of this legislation marks the end of a long process 
        for many Indian tribes and museums. The subject of repatriation 
        is charged with high emotions in both the Native American 
        community and the museum community. I believe this bill 
        represents a true compromise.... In the end, each party had to 
        give a little in order to strike a true balance and to resolve 
        these very difficult and emotional issues. (Congressional 
        Record, October 26, 1990, 17173).
    Administration of the processes established by the statute is 
carried out by the National Park Service's (NPS) National NAGPRA 
Program, with guidance and recommendations from the NAGPRA Review 
Committee. Over the years, the Society has worked with NPS on NAGPRA 
issues by submitting comments on proposed rules, frequently appearing 
before the Review Committee, nominating persons to serve as scientific 
members of the Review Committee, and consulting with National NAGPRA 
staff.
    The Society has worked diligently to support a balanced and fair 
implementation of the Act, consistent with the explicit language and 
the legislative history of the Act. In recent years, however, the 
Society has had, and has expressed, growing concerns about imbalance in 
certain areas of the law's implementation. The Society believes that it 
is critical that the actions and policies of the National NAGPRA office 
and the NAGPRA Review Committee reflect an increased effort to 
acknowledge and accommodate the diversity of interests at stake, 
particularly in light of the forthcoming actions by the Department of 
the Interior in addressing the issues of unclaimed cultural items and 
culturally unidentifiable human remains.
    In 2007, during consultations with National NAGPRA and other 
parties regarding proposed regulations on unclaimed cultural items, the 
Society highlighted four key points:
    1.  Balance: NAGPRA presents a carefully constructed balance among 
the legitimate interests of diverse parties, including lineal 
descendants, Indian tribes and Native Hawaiian organizations, 
scientific and museum communities, and the public at large.
    2.  Human remains: Human remains should be treated with dignity and 
respect at all times.
    3.  Documentation: Cultural items should be documented in 
accordance with professional standards in order to contribute to the 
process of accurately identifying parties entitled to exercise rights 
under NAGPRA and as a responsibility to all Americans' interest in our 
nation's past.
    4.  Consistency with Law and Policy: NAGPRA regulations must be 
consistent with the statute and with other applicable law.
    In the statute, the NAGPRA Review Committee was charged with 
``recommending specific actions for developing a process for 
disposition'' of culturally unidentifiable human remains (25 U.S.C. 
3006 (c)(5)). In its 1999 Draft Principles of Agreement Regarding the 
Disposition of Culturally Unidentifiable Human Remains, the NAGPRA 
Review Committee acknowledged that ``a fundamental tension exists 
within the statute between the legitimate and long denied need to 
return control over ancestral remains and funerary objects to Native 
people, and the legitimate public interest in the educational, 
historical and scientific information conveyed by those remains and 
objects.'' (64 Fed. Reg. 145 (July 29, 1999)).
    In its 2008 comments on the proposed regulations regarding the 
disposition of culturally unidentifiable human remains (79 Fed. Reg. 
58582 (October 16, 2007)), the Society highlighted four key points:
    1.  NAGPRA strikes a carefully crafted balance between the 
legitimate interests of tribes to care for their ancestors and the 
legitimate interests of scientific and scholarly efforts to contribute 
to knowledge about the human past.
    2.  Cultural affiliation is the foundation upon which this balance 
of interests rests. It provides a mechanism that enables descendant 
communities to obtain control over the disposition of their ancestral 
remains and important cultural items where a reasonably traceable 
relationship to an earlier group may be established, it respects the 
interests of the larger public to learn about humanity's shared past, 
and where such relationship has not yet been demonstrated it preserves 
certain cultural items and information for the benefit of future 
generations.
    3.  The Society led the scientific community in developing the 
compromise that NAGPRA embodies and it has consistently supported the 
law's implementation in a manner consistent therewith.
    4.  NAGPRA has led to productive new relationships among tribes, 
museums, and archaeologists through much effort and relationship-
building over the last 19 years.
    The leading stewards of the NAGPRA process on the national level 
are the NAGPRA Review Committee and the National NAGPRA office. The 
Society supports their roles in carrying out the responsibilities 
enumerated in the Act (25 U.S.C. 3006 (c)). The law requires the 
Secretary of the Interior to appoint members to the Review Committee in 
a manner that supports the balance of interests at stake. The statute 
established its Review Committee in recognition that these were 
difficult issues requiring diverse perspectives. The National NAGPRA 
office, as the entity implementing the day-to-day activities of NAGPRA, 
has a responsibility of neutrality toward the diverse perspectives on 
NAGPRA, including those in the museum, educational, and scientific 
communities, as it carries out its duties.
    Despite the safeguards built into the law, the Society believes 
there has been a serious erosion of the critical balance of interests 
represented in the law. For instance, in the proposed rule drafted by 
the National NAGPRA Office, the pivotal role of ``cultural 
affiliation'' as a cornerstone of the law is effectively discarded. The 
law requires ``cultural affiliation'' to be demonstrated by evidence 
before arriving at determinations about appropriate allocation of 
decision-making authority. All such evidence, whether provided by 
tribes, archaeologists, or other researchers, must be considered as 
parties work toward determinations of cultural affiliation. This 
process takes effort, it takes resources, and it takes time. These 
proposed regulations suggest that the quick and complete removal of 
human remains from curatorial institutions--a mandate that is neither 
explicit nor implicit in the Act--is more important than allowing time 
for parties to work together to seek knowledge and understandings about 
relationships of ``shared group identity''--the cornerstone of 
``cultural affiliation''--and to develop options for caring for remains 
and cultural objects.
    The Society encourages those overseeing the National NAGPRA office 
to use diligence in ensuring that all activities, including those 
relating to funding, enforcement, dispute resolution, and ``cultural 
affiliation,'' are conducted with utmost transparency and in a manner 
consistent with the statute and respectful of the balance embodied in 
the law and the diversity of stakeholder interests. Those vested with 
responsibility for implementing NAGPRA should seek to do so in a manner 
that is respectful of the diversity and importance of tribal concerns 
not only for appropriate treatment of their ancestral human remains and 
cultural items but also for the appropriate treatment of culturally 
unidentifiable human remains. This is of paramount importance. It is 
also critical that those same stewards of the NAGPRA process seek to 
carry out their responsibilities in a manner that is respectful of 
scholarly research and appropriate scientific inquiry as tools that 
assist in determining ``cultural affiliation'' and in understanding 
aspects of the broader human past. A great many tribes, museums, 
agencies, and archaeologists have developed successful working 
relationships grounded in mutual respect and collaborative research, in 
their efforts to determine ``cultural affiliation'' and to craft 
solutions to NAGPRA issues and to larger issues relating to the 
management of cultural heritage.
    As the leading professional society of archaeologists in the United 
States, the Society for American Archaeology will continue to support 
these goals. The many productive relationships that have been 
established over nearly twenty years of joint effort among those with a 
diversity of interests would be best served by ensuring that any 
forthcoming changes to the law support the balance of interests built 
into the law and the ability of all parties to work together toward 
sound and respectful solutions.
    On behalf of the Society for American Archaeology, thank you for 
the opportunity to provide the Committee with its perspectives.
                                 ______
                                 
    The Chairman. Thank you.
    Mr. Kippen?

   STATEMENT OF COLIN KIPPEN, FORMER NAGPRA REVIEW COMMITTEE 
                    MEMBER, HONOLULU, HAWAII

    Mr. Kippen. Aloha. Aloha, Chairman Rahall, Ranking Member 
Hastings, and other members of the House Resources Committee. 
Aloha also to your staff, to my fellow testifiers and those who 
are listening today to our words. I am Colin Kippen and I am 
testifying before the House Resources Committee as a private 
citizen. I served on the NAGPRA Committee for four years and I 
recently cycled off that committee.
    I am the first and only Native Hawaiian ever to have served 
on that committee. I come before you today with three very 
simple messages to send. The first is that NAGPRA is an 
incredibly complex and technical piece of legislation that was 
constructed around a very simple human ideal; to respect the 
human rights of Native people to possess and care for the 
remains and cultural property of their ancestors. It was 
intended to change the status quo, the status quo of where 
human remains and cultural property belonging to Native people 
sat on museum shelves, sat in boxes, and basically were not in 
the possession and care of the people who own them.
    This process is extremely complex and technical. It is a 
process that will not move forward unless there is capacity to 
change the status quo. In my comments that I have written, I 
have pointed out to you that I think that the place we need to 
begin these conversations is to ask what it is that the Native 
people need to be able to make this process work, because if 
the process doesn't work for them, then the harm continues 
unabated, and so, what I believe we need, which has been 
already mentioned to you on this Committee, is we need 
resources.
    We need to build the capacity, but as we build that 
capacity, we need to be sure that the capacity that we build is 
aligned to the people that we are trying to serve, and in this 
case, the people that we are trying to serve are the Native 
people. I have, in my testimony, listed a series of things that 
are recommendations that I think can be done. I would expect 
that these changes would be done in such a way that they would 
be aligned and of relevance to the people that we are trying to 
assist, that is, Native Americans.
    Capacity also needs to be built for museums and Federal 
institutions, and there is now ongoing, to my understanding, a 
government accountability report that will address that. There 
is a second point that I would like to make, and that is this. 
We have yet to define what success looks like under this NAGPRA 
program, and if you have not defined success, then how is it 
you will know when you have arrived there? I believe that what 
we need is a clear metric of what success means, so that all 
will be able to judge their performance against it.
    Once you have a clear metric, what then happens is that the 
agencies responsible for implementing NAGPRA will have a 
benchmark against which they will be measured, and when you, at 
your discretion, have oversight hearings, you will have a way 
to measure whether they are making progress. Presently, there 
is no metric. Presently, the system is one that is not working 
well. Finally, the third point I would like to make is an issue 
about the Review Committee.
    The Review Committee has a number of responsibilities that 
range from fact-finding to what I consider policy 
recommendation making. That is a huge set of functions, and to 
my way of thinking, the NAGPRA Review Committee simply does not 
have the time or the resources to do the work to which it has 
been assigned. For example, at most of our meetings, when we 
show up for the meetings, we have binders that are this thick, 
double-sided, and we have two days to go through our agenda, 
and what this information primarily relates to are disputes or 
for requests regarding culturally unidentified human remains 
and cultural items.
    This is fact-finding, this is very detailed, and it is very 
technical in nature. Because all of our time is consumed with 
doing that, we don't have time to do the other work, which is 
to see whether or not the system is working and how to assist 
the staff and how to set the kinds of priorities and plans that 
will allow us to manage this program in a better way. I thank 
you for the time, I thank you for the opportunity, and I thank 
you for listening.
    [The prepared statement of Mr. Kippen follows:]

   Statement of Colin Kippen, Former NAGPRA Review Committee Member, 
                            Honolulu, Hawaii

    Aloha Chairman Rahall and members of the House Resources Committee.
    I am Colin Kippen and am testifying before the House Resources 
Committee as a private citizen.
    I am a former member of the NAGPRA Review Committee, having 
recently completed a four-year term on that Committee as its 7th 
member--having been nominated for appointment by the unanimous 
recommendation of the scientific, museum, and Native religious members 
of the Review Committee and appointed by the Secretary of the Interior. 
I am the first Native Hawaiian to ever have been appointed to serve on 
this Committee. I was honored to serve at the last meeting as the Chair 
of the Committee after being unanimously selected by the members then 
present before my term expired. I am presently employed as the 
Executive Director of the Native Hawaiian Education Council in Hawaii, 
am a lawyer, former prosecutor, former tribal judge, and former Senior 
Counsel to the Senate Committee on Indian Affairs. The testimony and 
reflections I offer the Committee are my own, and I have come here 
today from Hawaii on my own accord and at my own expense to help in the 
important work you do.
    The Native American Graves Protection and Repatriation Act is a 
statute intended to remedy a history of the desecration, taking, theft, 
wrongful possession, and trafficking in the human remains and cultural 
items of Natives as defined in the statute. It constitutes human rights 
and Indian legislation that was long overdue when Congress passed it in 
1990, and when the President signed it on November 16th of that year. 
The pain, trauma, and anguish caused to present-day Native people by 
the actions which this statute was created to address can never be 
forgotten. It is the polestar that guides the process by which we must 
navigate our way through this statute and by which we must give meaning 
to the words and phrases chosen by the Congress.
    My comments today are focused on some of the institutional and 
systemic issues I have observed while on the Review Committee. My view 
is definitely affected by my status as the 7th member of the Committee 
appointed as the consensus member. It is also affected by the fact that 
I am Native Hawaiian and that I have worked and lived in both Indian 
and Native Hawaiian communities. It is my hope that I will be able to 
paint a clear picture of what I have seen and what we can improve upon 
so that this law will be better implemented.
Do Native people have the capacity and knowledge to effectively 
        participate in the NAGPRA process?
    NAGPRA is an incredibly complex and technical piece of legislation 
that is constructed around a simple human ideal--respecting the human 
rights of Native people to possess and care for the remains and 
cultural property of their ancestors. The NAGPRA process--the laws, 
regulations, internal processes, and data systems--are full of minutiae 
and difficult to understand. After working with NAGPRA for years, I 
still struggle to find my way through the statute and regulations.
    The NAGPRA process assumes Native people understand the law and 
regulations, know how to access, read, and search the on line NAGPRA 
data bases, know how to read and respond to the notices in the Federal 
register, know the consultation requirements and how to assure that 
proper consultation happens, and have the resources to travel around 
the country and call for the return of their ancestors or cultural 
items from museums and Federal agencies.
    This is a false assumption, in part because the NAGPRA process we 
have created is antithetical and disrespectful to traditional native 
beliefs--and because we have not sufficiently given Natives access to 
the training and resources they need to effectively advocate for 
themselves, their ancestors, and their cultural items. We must invest 
heavily in training and building the capacity of Native people if we 
want to see the system work better. And, the training we provide must 
be in a cultural context they understand and delivered by trainers and 
teachers who are able to bridge the cultural divide between an 
extremely legalistic, hyper-technical, and foreign administrative 
process and their traditional cultures and beliefs.
    I have seen time and again the trauma and pain displayed in the 
faces of those Native people who come forward to address the Review 
Committee about the return of their ancestors, and how the systems we 
have designed, the words we use, and the way we do things are hurtful 
to them. We can do a better job of reducing barriers to Native's 
participation in this process, in building bridges with them, and in 
translating and interpreting these rules so they are understood. We can 
do better, and we must.
What does success for NAGPRA look like, and why should we care?
    A good deal of the work we did in the four years I was on the 
Review Committee had to do with resolving disputes and making factual 
determinations about culturally unidentified human remains or cultural 
items. The individual case material we were provided was voluminous, 
technical, and detailed. While this is important work, our focus on the 
details prevented us from seeing a bigger picture, so that we never got 
to the really important work of understanding how to assess our 
progress to date, how to build a metric to track our results, and how 
to create systems of measurement to increase the traction of this law.
    Over 124,000 human remains and over 915,000 cultural items are now 
classified as culturally unidentified. They represent 721 museums and 
Federal agencies. Is this what we would have predicted would have been 
our story of success 19 years after this law was passed?
    NAGPRA was created to remedy the harm, degradation and disrespect 
to Native people as regards their human remains and cultural items and 
so we must ask Native people to tell us what their measure of success 
is under this law. We must ask them to help us create the metrics to 
track and measure our collective actions. We must ask them how these 
systems can be improved. And we must recast the Federal agency 
responsible for administering this Act to create systems, measures, and 
reports that are simple, clear, and understandable and that are tied to 
frequent and regular Congressional oversight. We must also engage other 
NAGPRA stakeholders in this metric setting process as well, so all are 
clear on what success under NAGPRA means. If what gets measured is what 
gets done, then we need to get busy creating the right measures to get 
us to our goal.
    This has not happened to date for a number of reasons. The Review 
Committee is ill equipped to do this work given existing demands on 
their limited committee time and their expertise as subject matter 
experts rather than people experienced in creating and managing 
institutional change in a decentralized NAGPRA process potentially 
touching all museums, all Federal agencies, and all Native people. The 
Congress is a busy policy body that operates on a political triage 
system without a metric to gauge the success of this program on an 
ongoing and routine basis. The National NAGPRA program is consumed with 
implementing the present system which has evolved over time--and lacks 
the resources, authority, or clear policy focus to make the changes 
suggested.
    I have hope though, that we can make the changes needed. I ask this 
Committee to send a clear message to the Administration that you expect 
a metric be created and used in a way that directly aligns with the 
reasons for which NAGPRA was created and which includes the views of 
the Native people for whom this statute was created. I also ask that 
this information immediately be collected and digested, so that 
improvements to the program may be made. I finally ask that this metric 
be used by the Congress to gauge how we are doing and whether or not we 
are getting closer to meeting the intent of this Act.
Does the Review Committee have the authority to accomplish its policy 
        and fact finding responsibilities?
    The NAGPRA Review committee was created to accomplish a number of 
functions that run the gamut from case-specific factual determinations 
to policy evaluations to consulting with the Secretary to create 
administrative regulations. The NAGPRA staff set the agenda and 
determine what issues will receive priority and occupy the Review 
Committee's attention. It has been my experience that the NAGPRA Staff 
has the ability to heed or ignore the actions of the Review Committee 
at its discretion, without clear a priori guidance being provided to 
the Review Committee as to the limits and scope of the Review 
Committee's discretion.
    This is a waste of effort and is an example of the Committee having 
responsibilities without the authority to carry them out. An example is 
recommendations made by the Review Committee on January 8, 2008 with 
respect to 43 CFR 10.11 Disposition of Culturally Unidentified Human 
Remains and Associated Funerary Objects. A year and nine months later, 
the Review Committee is in the dark as to whether their unanimous 
recommendations will be acted upon.
    Members of the Review Committee have also requested information 
from NPS NAGPRA about issues that arise in the normal course of 
business without any clear guidance as to whether these requests for 
information will be honored. Almost two years ago I requested 
information about NPS National NAGPRA Program's plan to ``withdraw'' 
numerous notices of inventory completion that had been submitted for 
publication in the Federal Register by museums and Federal agencies but 
had been languishing unpublished in the NPS NAGPRA office for over a 
decade. If the national NAGPRA policy is to foster notice and awareness 
amongst Native people by publishing the notices received by the NPS 
NAGPRA program from museums and Federal agencies, then how is that 
purpose served by giving these museums and agencies the ability to now 
rescind these notices after all these years?
    While the information requested would have helped me to better 
discharge my Review Committee duties of ``monitoring the inventory and 
identification process under sections 5 and 6 of this Act'', I am 
resigned to the fact that I will never know the details of NPS NAGPRA's 
decision. Had I been able to review and evaluate the information 
requested, I believe our Review Committee would have been able to 
discuss the matter and render a policy recommendation that could have 
clarified the administrative process as well as reassuring the public 
about the fidelity of NPS NAGPRA's compliance with both the letter and 
the spirit of NAGPRA.
Recommendations.
    The thrust of my comments have been directed at creating a set of 
systemic changes which I believe would help us to move this program 
forward in a tangible and measurable way. I recommend as follows:
    Training and Capacity Building.
      Assess the barriers to Native participation in NAGPRA, 
report upon it, and formulate a plan to address it.
      Increase the capacity of Natives to participate in NAGPRA 
by immediately increasing comprehensive NAGPRA training and increased 
funding opportunities.
      Assure that all training provided is delivered in a 
culturally appropriate manner by trainers with a proven track record of 
being able to effectively teach in various Native communities.
      Assess and evaluate the effectiveness of the training 
provided, report these results, and use them to reassess and redesign 
training and funding opportunities delivered.
      Create a similar process to address similar issues for 
museums and Federal agencies and repeat the above process for them as 
well.
      Schedule routine and frequent Congressional oversight 
hearings on this issue with the expectation that a set of clear metrics 
and data collected within those metrics will be presented by NPS 
National NAGPRA to the Congress. Use this metric to measure agency 
performance.
      Fund these improvements.
    Defining What Success Means Under NAGPRA.
      Engage Natives in defining a clear and understandable 
metric of what success looks like under NAGPRA. Engage other 
stakeholders in the process, too.
      Create a system of indicators and measures aligned with 
the purposes of NAGPRA to be used by NPS National NAGPRA.
      Use these indicators (and the data collected thereunder) 
to define existing barriers to success, to measure agency performance, 
to capture best practices, and to make improvements in program 
administration.
      Schedule routine and frequent Congressional oversight 
hearings on this issue with the expectation that a set of clear metrics 
and data collected within those metrics will be presented by NPS 
National NAGPRA to the Congress. Use this metric to measure agency 
performance.
      Fund these improvements.
    Assess the role of the Review Committee in accomplishing the 
effective implementation of NAGPRA.
      Clarify Review Committee authority vis-a-vis NPS National 
NAGPRA to receive data and have their recommendations implemented by 
NPS National NAGPRA.
      Assess the Review Committee's ability to discharge each 
of its responsibilities under NAGPRA in terms of the Review Committee's 
access to clear and understandable information, its Committee expertise 
in addressing each of those items, and the resources (time, 
information, and funding) able to be brought to bear for each of these 
items.
      Define metrics to measure and track Review Committee 
performance in accomplishing its goals and objectives.
      Fund these improvements.
                                 ______
                                 
    The Chairman. Thank all of you for your excellent testimony 
today. Let me begin my first question with Chairwoman Shemayme 
Edwards. What types of expenses are required in order to 
repatriate human remains and cultural objects?
    Ms. Shemayme Edwards. I would like to be able to direct 
that to my NAGPRA coordinator. He can better give you 
information.
    The Chairman. Sure. Please give us your name and title so 
we will have it for the record, please.
    Mr. Gonzalez. My name is Bobby Gonzalez. I am the NAGPRA 
Coordinator for the Caddo Nation, Mr. Chairman. The history of 
the funding for the Caddo, there are two types of NAGPRA 
grants. One is considered a consultation/documentation grant 
and the larger of the rewards. Just a year ago, you know, we 
were able to receive a $75,000 NAGPRA grant. They are up to 
90,000 per year. The other is a repatriation grant up to 
15,000, and it is specifically for going and getting 
collections from universities, museums or repositories, and it 
pays the costs for mileage, per diem and hotel, etc.
    We have submitted a NAGPRA grant basically every year since 
the funding program and we have been very lucky to receive 
eight out of thirteen NAGPRA grants since the inception of 
NAGPRA. We have received several small repatriation grants to 
repatriate objects from Louisiana State University. However, 
the funding level, it takes around 130,000 a year to operate 
our office, and to answer your question, we have thousands of 
human remains on the shelves from the East Coast to the West 
Coast, and if you don't receive a NAGPRA grant, we still have 
the issues of dealing with repatriation every day, and so there 
lies a problem there.
    The Chairman. Do the museums and Federal agencies consult 
with you on how the items are kept until repatriation can 
occur?
    Mr. Gonzalez. Yes and no. There are museums, Federal 
agencies and universities that consult with us under the rules 
and regulations in the Act, and there are those that do not. A 
lot of the inventories and summaries, they do not consult on 
drafting those inventories and those summaries. They do not 
consult on the drafting of the publication of the notices of 
those inventories and summaries that are going to eventually be 
published in the Federal Register.
    The Chairman. Do they allow you access to the cultural 
objects for cultural purposes?
    Mr. Gonzalez. Yes and no. It depends on where you are at 
and who is asking and what state you are in. They do allow 
access, a lot of times they do not. They sometimes don't allow 
you access to the information that surrounds a collection. We 
have been told at some universities, if you want the 
information, go to the local library and get it.
    The Chairman. Let me ask Mr. Titla a question. You indicate 
that the Park Service interpretation of NAGPRA allows museums 
to refuse to admit to any wrongdoing. Will you provide more 
detail on what the Park Service has told the Working Group? Do 
you have that?
    Mr. Titla. Yeah, I think that what the Park Service wanted 
to do was just to call these items cultural items rather than 
sacred items or cultural patrimony. We believe, the Apache 
Tribe, that if they were to call them cultural patrimony, this 
would afford the items full respect and a full description of 
the items that they have, and I think that with cultural 
patrimony, according to the Apache people, there would be no 
individual ownership of these items that were taken from the 
Apache people long ago, in the 1800s.
    A lot of them were taken in the late 1800s by the U.S. 
Cavalry or by missionaries or other people, agents of museums 
that came among the Apache people, and the items were taken or 
bought in some places by these people from medicine people or 
other people that conducted sacred ceremonies for the Apache 
people, and we feel that the items were not taken properly, and 
in order to give them their full respect and to help correct 
wrongdoing, we think that they should be identified as cultural 
patrimony or sacred items by the museums.
    The Chairman. OK. I have a couple more questions for the 
others on the second round. Let me go to the gentleman from 
Washington, Mr. Hastings.
    Mr. Hastings. Thank you, Mr. Chairman. I have a question 
for Ms. Bruning. You heard Director Wenk say that the 
regulation is forthcoming on cultural affiliation, be any time, 
and you reference that in your testimony. Can you give me your 
thoughts on what you know about those regulations that are 
forthcoming?
    Ms. Bruning. I will certainly try. I believe SAA submitted 
about 40 pages of comments on the proposed regulation, so we 
have lots of thoughts. I think our overriding concern is with 
the apparent push to, almost a first come first served approach 
to resolving the status of culturally unidentifiable human 
remains, and to move toward quick removal out of repositories 
as opposed to careful efforts to ensure that all possibility of 
achieving cultural affiliation has been accomplished before a 
resolution comes to pass on those that truly are 
unidentifiable, as opposed to perhaps presently unidentified, 
and my understanding personally from some of my work with 
Southwestern tribes as well as certainly members of SAA is that 
there is a lot of ongoing collaboration and effort to continue 
to look into connections of group identity and to understand 
thoroughly how both time and space and other elements, tribal 
knowledge, scientific knowledge, historical knowledge, can come 
to play to make sure that we honor the current descendants and 
their opportunity to take care of their ancestors, and that 
time limits are not the reason why they fail to have that 
opportunity.
    Mr. Hastings. Well, we look forward to those regulations 
and look forward to your response when you get a chance to see 
them.
    Ms. Bruning. Certainly, we will be happy to give that. 
Thank you.
    Mr. Hastings. Thank you, Mr. Chairman.
    The Chairman. The gentleman from New Mexico, Mr. Heinrich?
    Mr. Heinrich. Thank you, Chairman. I wanted to ask Mr. 
Kippen real quickly what the standard of proof is for cultural 
affiliation and who bears that burden?
    Mr. Kippen. The burden of proof?
    Mr. Heinrich. Yes.
    Mr. Kippen. What I will tell you is that if I am going to 
give you that answer, I will have to look at my materials and 
give it to you, and I want to make a point here. The point I 
want to make is that this is extremely complicated. I never 
work in the NAGPRA field without consulting the rules, and I do 
this because my memory, the system does not make inherent sense 
to most people, and so I am going to, I think, demonstrate my 
ignorance before this Committee, as an attorney, as a former 
judge, and as a former staffer of the Senate Committee on 
Indian Affairs, because this is extremely complicated.
    I never act--and I will look it up for you and I know I can 
give you the correct answer, but rather than do that in this 
situation, I am not going to, and the complexity of this law is 
a point that I want to emphasize. Because it is so complex, 
because it is so technical, it renders it almost impossible for 
the people who we want to serve, and the people that we want to 
serve in this case are the people who are harmed by the status 
quo, their difficulty in understanding this process is one of 
the huge issues that this Committee needs to address, and if I 
might just go on for a few seconds more--and the training that 
is offered and the way that we offer it, it needs to be aligned 
to the people we are trying to teach.
    I have one example to offer, and it is probably not the 
best. There is an organization now that has recently been hired 
to do the training for the National NAGPRA Program. It is the 
National Preservation Institute. Earlier this year they 
announced a grant. With the Federal money, they were going to 
train the Natives. They issued a notice. The notice went out to 
Indian tribes and Alaska Natives. They excluded Native 
Hawaiians.
    I called them a month later--well, actually, I called the 
staffer who is in charge of it for our national program. 
Approximately a month later, it was changed. If they don't 
know, then what does that say about our national training 
program? It raises questions in my mind, and I raise those 
questions to the Committee and to our staffers. Thank you for 
the question.
    Mr. Heinrich. Thank you, Mr. Kippen.
    Ms. Kraus, I wanted to ask you how common it is for 
multiple tribes to claim cultural affiliation with particular 
ancestral remains or sacred objects, and how NAGPRA, or how you 
handle claims that have multiple associations of cultural 
association.
    Ms. Kraus. Well, let me state that in terms of the 
inventory process that you are talking about, the question you 
ask is so technical that only an expert NAGPRA person would 
actually know the answer to it, but the bottom line is that the 
tribes would have been consulted in the development of their 
notice of inventory completion that would have created cultural 
affiliation. So, it is not uncommon to have many tribes, in 
fact, our studies show that many tribes are willing to work 
together to repatriate human remains whether or not they are 
affiliated or unidentifiable.
    So, in answer to your question, it is common and you know, 
there are many opportunities to do so.
    Mr. Heinrich. So in terms of trying to, if there are 
multiple associations with one object, say, in terms of trying 
to repatriate that to the appropriate place, how do you balance 
the interests of multiple tribes here or is that just through a 
consultation process with all of those players?
    Ms. Kraus. Well, many--but again, this is really getting 
into the minutiae, which is one of the challenges for Native 
people to implement the Act, but in terms of an object, many 
times an object is specific to a family. That is how you are 
proving cultural affiliation, and so there are stories that go 
along with an object or cultural patrimony, so there are very 
specific ways of determining who and what possibly that was 
affiliated with in the first place.
    Mr. Heinrich. OK.
    Ms. Kraus. Do you want me to go on or is that----
    Mr. Heinrich. No, that is fine. Thank you.
    Mr. Chairman, I will yield back the balance of my time.
    The Chairman. The gentleman from California, Mr. Baca, is 
recognized.
    Mr. Baca. Thank you very much, Mr. Chairman.
    Mr. Kippen, you stated today the Tribe needs resources. Can 
you help us understand and share with us the type of resources 
that are needed specifically?
    Mr. Kippen. Yes, I think I can. Again, let us understand 
the status quo. The status quo is that this is an extremely 
decentralized problem that we are facing here. You have Natives 
from across the country. You have museums and Federal agencies 
that are in the possession and control of human remains and 
cultural items that are also across the country. I may be in 
Hawaii as a Native, and my remains may be in a museum in 
Florida, in Boston, you know, wherever, all across the country.
    So, the problem that you are facing is how to figure out 
how to build a system where it all comes together, and so the 
question really is about capacity. How is it that we create a 
system that enables museums and Federal agencies to report in 
such a way, in an understandable way, in a clear way, that the 
message gets out to people across the country? Now, that is 
extremely difficult. I think what you really need is you need 
to improve the database that you now have online, and what I 
mean here, that it needs to not only be really high-tech, but 
it also has to be high-touch, in the sense that people 
understand it, in the sense that it is accessible, in the sense 
that you and your staff could go online right now and find out 
where remains are that you believe are in an institution across 
the country.
    I challenge all of you to go onto that website and to 
figure out whether or not you could find, if you were a 
detective, whether you could find where those remains are, and 
so that is why I say this is a capacity problem. It is a 
technology problem, it is a training problem, and as Ms. 
Bruning said, it is about building relationships. If I might 
just one more, one more part of this conversation, you need to 
have a metric to measure whether or not the capacity that you 
are building is actually being built.
    You need to have a metric to understand whether or not 
those relationships are being improved. You need to have a 
metric to measure whether or not that data system is working 
for the people who have to use it. Remember this. If we don't 
change the status quo, the remains and the sacred items and the 
cultural items and the funerary objects and the items of 
cultural patrimony stay where they are. So, this is a question 
not only about funding, it is a question about coming up with a 
metric, it is a question about management, it is a question 
about building a better system, and it is a question about 
doing that now. Thank you.
    Mr. Baca. If I may follow up, in reference to a metric that 
could be developed, you know, it is nice that you can develop a 
metric, but if you don't have bodies or people who sit on the 
committee, and this is a question for all of you, do you think 
there is adequate representation in terms of the committee that 
reviews in making these kind of decisions, from Native 
Americans? Any one of you?
    Ms. Kraus. Because it is my nature to always try and help 
an answer, could you restate your question again, because I 
think--are you talking about the Review Committee?
    Mr. Baca. Do you think there is adequate representation, or 
does there need to be additional bodies or people put on a 
commission review to make sure that you have the kind of 
individuals that represent Native Americans to make sure that 
when you deal with metrics, that somebody is sensitive, that it 
comes to funding or it comes to burial lands, it comes to 
anything else, is that you have a voice at the table? Do you 
have adequate voices at those tables right now?
    Ms. Kraus. I will try and explain that I believe people are 
talking about the National NAGPRA Review Committee, and that is 
set by law, the membership, seven members. The staff of the 
Department of the Interior, which has been delegated to the 
National Park Service, do most of the work, and to answer part 
of the question is I believe that without any Native Americans 
working in the office, there are currently none, that is an 
inherent weakness in the program. As to the Review Committee--
--
    Mr. Baca. Could you repeat that again? There are how many?
    Ms. Kraus. Zero.
    Mr. Baca. How many? Zero.
    Ms. Kraus. In the history of the Act, in the history of the 
implementation at the National Park Service, I believe there 
has only been one Native American who has worked there. They 
have a Canadian Indian right now, fabulous person, but it is 
Indian law. It was created for the benefit of Indian tribes and 
Native Hawaiian organizations.
    Mr. Baca. Thank you. Anybody else want to attempt to answer 
that, or not? Or repeat the same thing, that you need 
representation?
    Mr. Titla. Yes, Steve Titla from the San Carlos Apache for 
the Apache Working Group. We have been to four Review Committee 
hearings with the Review Committee, and I think that the Review 
Committee has done a good job, because they decided for us, 
because we were in the right. At any rate, I think that, as Mr. 
Colin Kippen indicated, he was a former committee member, and 
he said that two days before the hearing he would get a big 
binder of materials to go through and didn't get adequate time 
to really review the material and find out the issues involved, 
and I think that that talks about too few committee members.
    What I would recommend is that there be more, perhaps 
double the committee members, and maybe have the committee 
members take care of regional issues. For example, we have 
Apache issues in Arizona and New Mexico, and perhaps you can 
have a regional committee member that will address that are 
only, and then have other committee members that will address 
Hawaii, the southeast United States, northeast United States, 
northwest United States, because there are so many tribes, and 
Hawaii included, that all the issues are different among the 
tribes, so that if you can have experts from regional areas 
that will address those respective tribes, then I think that 
you can get more work done and these people on the committee 
can understand the specific issues that would be involved with 
them. Thank you.
    Mr. Baca. Thank you very much. That is something for us to 
consider as far as regional areas for representation, to make 
sure that we have sensitive voices that will deal with the 
different perspectives. Let me ask this question of Chairwoman 
Brenda Shemayme Edwards. You mentioned the lack of funding and 
access to grants. Based on your experience, what type of 
training or outreach must be implemented to help tribes like 
the Caddo Nation of Oklahoma go through the NAGPRA process?
    Ms. Shemayme Edwards. Thank you for your question, and 
again, I would like to direct it to my NAGPRA coordinator, who 
works with these every day, but if I might take a minute of 
your time while Bobby is getting up here, I would like to offer 
to the NAGPRA Review Committee to come out to our tribe in 
Caddo Nation of Oklahoma, to come out, and they can accompany 
us on a repatriation so they can see hands-on the extent of 
what Bobby and my other two employees go through on a daily 
basis, so that maybe they could better understand our process, 
because each tribe, repatriation varies, and you know, there 
are 37 tribes in Oklahoma alone, and each tribe has their own 
process, and I think it would be beneficial to the Review 
Committee to come out and actually have hands-on experience 
with a repatriation.
    Mr. Baca. Thank you, Chairwoman.
    Bobby?
    Mr. Gonzalez. Sir, could you repeat the question?
    Mr. Baca. Sure. Based on experience, what type of training 
or outreach must be implemented to help tribes like the Caddo 
Nation of Oklahoma go through the NAGPRA process?
    Mr. Gonzalez. Sir, to be honest with you, to answer your 
question, I don't think you could have anyone show us the 
process because it is real tedious work. We have been at it for 
a long time. We actually know how to look at these inventories 
and summaries. To answer your question, a lot of the tribes, 
like the 37 tribes in Oklahoma that are Federally recognized, 
most of them don't receive Federal funds when it comes to 
NAGPRA grants, have ever repatriated remains, or even have an 
office.
    They are still in the dark a lot on how this NAGPRA process 
works. As far as the inventories and the summaries and the 
consultation, you really need to sit down with tribes and go 
over what to look for in an inventory, what to look for in a 
summary, and how to tear that apart and actually look at the 
information that that institution or that university or that 
scientist is looking at that determines cultural affiliation, 
or how they came up with the definitions that fit the rules and 
the regulations.
    So, it is real tedious. I am going to give you one example. 
We have a collection right now that we are documenting. The 
human remains are split up in institutions across the United 
States. Louisiana State University has human remains. Louisiana 
State Exhibit Museum has the associated funerary objects that 
were once with those individuals at a known site on the Red 
River. However, the Smithsonian has skulls related to that same 
site, and also Northwestern State University in Natchitoches, 
Louisiana, has a baby burial and an eagle that is associated 
with that site.
    So, we have the burden to put this back together so we as a 
tribe can re-bury our ancestors closest to where they come 
from, and that is a whole other issue. So, to answer your 
question, when you find the answer, I would like to know the 
answer to that. Training needs to happen in Indian country. 
Where we are at in Oklahoma, we hardly see the training, and a 
lot of the repatriation Review Committee meetings happen in 
Hawaii or Florida or some other location, and some tribes like 
us don't have the resources to travel and to get to listen to 
what is going on in the NAGPRA world. So, I hope that helps a 
little.
    Mr. Baca. Well, I think you have answered it by saying that 
there is lack of training, there isn't the training that needs 
to be done, so that is an awareness on our part in terms of 
what needs to be done, and we can convey that, because you 
can't do anything on the process unless you have the training 
in order to implement that process, and you need the funding 
and you need the sensitivity too, as well, in terms of making 
sure that we have bodies or people there as we look at funding 
because we know that out of sight, out of mind, when it comes 
to Native Americans, on all issues.
    Unless someone is, as I stated before, at the table and can 
address the issues that have been there from the past to 
current----
    Mr. Gonzalez. Sir, if I may?
    Mr. Baca. Yes.
    Mr. Gonzalez. There are Natives across the U.S. and Native 
Hawaiians that are experts in this law, that can help provide 
the training and provide an avenue to help other tribes and 
institutions and museums and universities and Federal agencies 
on a better outcome and partnership and trust and relationship 
in getting this worked out.
    Mr. Baca. Thank you. I yield back the balance of my time, 
since I have no time.
    Mr. Gonzalez. Thank you.
    The Chairman. Let me ask Ms. Kraus a question. The Makah 
Tribe study recommended that the National Park Service program 
develop a consultation policy. Why is this necessary?
    Ms. Kraus. Well, thank you very much. Consultation is a 
bedrock of the Native American Graves Protection and 
Repatriation Act, and in our 11-plus years of work with how to 
implement tribal consultation, we have found that most people, 
most Federal agencies have a policy on the fact that they must 
do tribal consultation, but they don't have a protocol, a step-
by-step process to follow in what it means to actually conduct 
tribal consultation.
    So, in other words, I know that I have to consult with the 
National Park Service, but there is no policy that says, this 
is the process, a letter comes from this official at this rank, 
to the tribe, and these people of the tribe, and then we sit 
down and participate in discussions. There is no such step-by-
step protocol. Without that, it is my belief that you really 
don't have tribal consultation. If you don't have an up-front 
process that you understand, both parties, both sides have 
agreed to, that this is how we are going to negotiate and talk 
with each other, and if one side holds all the cards and 
doesn't always say, this is how it is going to be done, this is 
when it is finished, this is the ultimate result that we are 
shooting for, I don't believe it is an open and transparent 
process.
    The Chairman. Thank you. What is your understanding of the 
current process for publishing a notice of inventory 
completion?
    Ms. Kraus. Well, the law stated that by 1995, Federal 
agencies and museums had to consult with Indian tribes and 
Native Hawaiian organizations to do this first broad wave of 
cultural affiliation discussions. That is tribal consultation 
in action right there. And by May 16, 1996, they were to notify 
in writing all Indian tribes and Native Hawaiian organizations 
that they had determined these cultural affiliations.
    A copy of that notice went to the National Park Service. 
The National Park Service is designated by law to publish the 
notice in the Federal Register, and I think just to point out, 
then this is where there is perhaps a weakness in the process, 
as there is no deadline for how long the Park Service can have 
one of these notices of inventory completion announcing 
cultural affiliation. There is no deadline on how long they 
have to publish it in the Federal Register.
    In our earlier comments and discussion points, you have 
heard mention of a backlog or, you know, there are 300 notices 
waiting, 225, 79 notices. Those were all supposed to be 
submitted by May 15, 1996, to the National Park Service. In the 
Makah report, we included a letter of one of these notices and 
it states that the National Park Service, the Grand Canyon 
National Park had affiliated human remains to about 10 tribes 
in the Southwest.
    They submitted that by law and they complied with the 
requirement to report it and they sent a copy to the National 
Park Service. The National Park Service had that pending notice 
of inventory completion for over 12 years when they decided to 
withdraw it in the year 2007, and I believe that 12 years is 
too long to have something waiting to be published in the 
Federal Register.
    The Chairman. Thank you.
    Ms. Bruning, your written testimony questions the 
transparency of the National NAGPRA office with respect to 
funding, enforcement and dispute resolution. Why do you think 
the National NAGPRA office is not transparent in these areas?
    Ms. Bruning. I don't think it is a matter of intentional 
lack of transparency as much as it is the difficulty of having 
access to accurate and open information as the process 
currently stands. Part of that may be a funding issue to be 
able to have the ability to develop the website, make materials 
available. I think that certainly in the last five years as I 
have watched things unfold, there has been an increasing access 
and transparency to certain information, which has been 
wonderful, the databases for example.
    I think some of our concern is about understanding how 
decisions are made, whether it is decisions about assessing 
nominations for the Review Committee and selection process or 
whether it is decisions about how grants are assessed and 
granted and funding is allocated among parties. So from some of 
our constituents, and we certainly are not here representing 
museums or tribes, and they are the ones that are more involved 
in, for example, the grant-making process, but in terms of 
archaeologists who are working with both museums and tribes 
trying to move forward on repatriation, there are concerns 
about understanding how the process unfolds, how they can best 
proceed with accessing funding and information to address the 
repatriation concerns.
    The Chairman. The Review Committee recommended that the 
National Park Service consider the Review Committee's 
recommendations made in 2000 for the proposed 10.11 regulations 
regarding the disposition of culturally unidentified human 
remains and associated funerary objects. Did your organization 
agree with the Review Committee's recommendation?
    Ms. Bruning. It is my understanding that SAA has been 
supportive of those recommendations, and particularly the idea 
of regional solutions and working, rather than trying to come 
up with a single one-size-fits-all solution, my recollection is 
that the Review Committee advocated for more customized, 
careful, regional discussions to come up with proposed 
solutions, and certainly SAA would support that approach in 
preference to some of the structures we see in the most 
recently proposed regulations.
    The Chairman. OK. Mr. Kippen, in your opinion, what do you 
think the state of the NAGPRA data is, and why is accurate data 
so important?
    Mr. Kippen. My opinion is that the state of the data could 
be much improved. I also think that the accessibility to the 
data, the understandability of the data could be much improved, 
and the reason I think data is absolutely crucial is because we 
want as a best practice to make decisions based on data and 
information, and when we make decisions, we want to base those 
decisions upon accurate data and information. So, if you don't 
have accurate data, or if you don't have data, or if you can't 
access the data, then you really don't know what it is, how you 
are doing, and I think that is absolutely crucial.
    It is crucial, I think, for this Committee, because you are 
sitting at 30,000 feet trying to look down and understand what 
it is you can do to make this work better. You have the staff 
at the National NAGPRA who are actually on the ground, but what 
we need is we need that intermediate piece where we have a set 
of clear goals, clear metrics which will help you to do your 
work and will help them as well, so that when they come and 
report to you on, I hope, a frequent basis, that when they do 
report, that you are able to see that they are making progress 
on these issues having to do with accessibility to information, 
on issues having to do with their knowledge and their capacity 
to work the process, on the museums and the Federal agencies' 
understanding of the process and how they are doing with 
respect to their collections and the items and the remains that 
they are holding.
    So, the whole system is dependent upon data, and I think 
the way that you make it all work is to be clear at a higher 
level about what it is we are going to measure them against, 
because really, what gets measured is what gets done, so you 
need a measure. Now, I want to just add one thing. There is a 
measure that I know has been addressed. It was addressed by Mr. 
Wenk when he testified. It was also addressed by some of the 
people on this Committee, on this panel, and that was, and I 
will tell you what it is, the metric was the number of 
inventories in the backlog. That was a metric.
    High number of--big backlog before. Now we have a little 
backlog. Well, there are a number of strategies that one could 
implement to take the backlog from a big backlog to a little 
backlog. I am not really clear what that strategy was, but I do 
know that notices were sent back. Notices were sent back and 
not published by the National NAGPRA office, and in my opinion, 
that is not a strategy that works for me. I would say that if 
you are going to be sending back notices to be able to reduce 
your backlog, there needs to be an inquiry into that, and I 
think, and I will assume that that was what your office has 
been attempting to do, to understand how we went from big 
backlog to little backlog and what was the process by which we 
got there.
    I will say that some of the members, myself, I did ask 
questions about this over two years ago because under the law, 
5, 6 and 7, this Committee is supposed to oversee that whole 
process, and again, without data and information, how do you 
make a good decision? So, it is clear--data is absolutely the 
touchstone. It is the polestar. It is the star that we need to 
be driving toward all the time so that we can make the best 
decisions.
    The Chairman. Thank you.
    The gentleman from Washington?
    Mr. Hastings. I just want to thank the witnesses here. I 
found this kind of a fascinating discussion, so I want to thank 
all of you for being here. Thank you very much, and Mr. 
Chairman, thank you for having a hearing on this. As I 
mentioned in my opening statement, it is rarely a bad idea to 
review those areas where we are responsible, so I thank you for 
that.
    The Chairman. No further business? Any concluding comments 
by the witnesses? I will give you that opportunity. Yes, ma'am? 
Ms. Kraus.
    Ms. Kraus. Well, I would like to, again, NATHPO works with 
tribes around the country and we don't have a lot of wealthy 
tribes that are members and, you know, in terms of thinking 
about today's hearing and, you know, why do they care so much 
about this Act, you know, how can they be part of it, how can 
they take advantage of this, because it is for their benefit. 
They have a lot of personal reasons for wanting to repatriate 
items. This is a repatriated item I am wearing today. I wore it 
on purpose, and you have no idea how important this is for me 
to wear, no idea how important it is for some little old lady 
in Kake, Alaska, to know that I am wearing this today.
    And so, in terms of this Act and how it has become such a 
technical, lengthy process, and how Native people were forced 
to just go from zero to 60 and accelerate it to the point where 
we knew the process, we could learn it and we will make it work 
for us, thank goodness some tribes were able to make the 
process work for them. Unfortunately, I think a lot of tribes 
aren't able to make it work for them. They are the small 
tribes, the tribes that don't have capacity.
    I think Caddo Nation has made a pretty compelling case that 
they just don't have the staff, they don't have a casino, 
economic development in Indian country is incredible 
unemployment that continues to be ignored, 50 percent 
unemployment, 80 percent unemployment. So, how does NAGPRA work 
for those who can't afford a person to do NAGPRA? You know, we 
have now watched--tribes have to hire lawyers to get some of 
their items back, to get some of their human remains back.
    Not every tribe can afford to hire a lawyer to do this. So, 
I guess my plea is that the Act is working for some tribes, but 
unless you have access to a lot of resources, this is just not 
really serving the audience that it was intended, and so I 
appreciate all your help that you can do on this Act. Thank you 
very much.
    The Chairman. Beautiful comments. You couldn't have 
described our goal better.
    Any further comments from the panel? Anybody? Yes, sir.
    Mr. Kippen. I would just like to again say that I think the 
issues that face the implementation of this Act are systemic 
and that you need to have a systemic approach to how you are 
going to address them, and to the extent that we are clear in 
what those benchmarks are, what those measures are, what those 
metrics are, I think that we could improve it, and I think it 
will greatly improve your ability as an oversight committee to 
get the kinds of answers you need to be able to make the Act 
better.
    The other thing I want to say is I want to be absolutely 
clear that I think part of the objective in my coming today is 
to send a message to the Administration that they need to put 
some time and some energy and some resources into helping 
create these systemic improvements and these metrics, so that 
at the end of the day, you will, and all of us will be able to 
make sure that this Act is moving forward. Thank you for your 
time and for listening.
    The Chairman. Thank you. Again, thank the witnesses for 
being with us today. No further business, the Committee stands 
adjourned.
    [Whereupon, at 11:35 a.m., the Committee was adjourned.

                                ------                                

    [A statement submitted for the record by Mr. Edward 
Halealoha Ayau, Executive Director, Hui Malama I Na Kupuna O 
Hawai`i Nei, follows:]

     Statement submitted for the record by Edward Halealoha Ayau, 
        Executive Director, Hui Malama I Na Kupuna O Hawai`i Nei

    Aloha no e Mr. Chairman and members of this committee. I am the 
Executive Director of Hui Malama I Na Kupuna O Hawai`i Nei, a Native 
Hawaiian Organization specifically identified in the Native American 
Graves Protection and Repatriation Act (``NAGPRA'') as having expertise 
in burial matters and authorized to conduct repatriation of ancestral 
Hawaiian remains, their funerary objects, sacred objects and cultural 
patrimony. Pursuant to NAGPRA, we have conducted extensive 
repatriations with U.S. museums and federal agencies, state agencies, 
private individuals, and with foreign museums pursuant to our 
international human right and responsibility to care for our kupuna or 
ancestors (see Attachment A).
    In addition, we have appeared before the NAGPRA Review Committee on 
several occasions to resolve issues arising under this law, applied for 
and received NAGPRA grants to conduct repatriation and to document 
information from museums, and have filed failure to comply allegations 
against museums who we believed are in violation of NAGPRA. We have 
provided testimony several times on NAGPRA and again provide the 
following observations and recommendations in the hopes that a most 
important law and its implementation can be further strengthened.
    The following are several issues and concerns that we wish to raise 
for the Committee's understanding of some of the challenges we continue 
to face 19 years after the enactment of NAGPRA:
1.  The National NAGPRA Program must improve its ability to update the 
        Native American Consultation Database in a timely fashion and 
        not treat requests for such as complaints.
    On May 4, 2009, we emailed the National NAGPRA Program requesting 
to update our contact information on the Native American Consultation 
Database (NACD) and were assured they would do so (Attachment B). We 
learned that we had been left out of a NAGPRA repatriation as a result 
of Oregon State University (OSU) relying on the outdated information to 
attempt to contact us and conduct consultation. When we failed to 
respond, OSU proceeded without us. We learned of the pending 
repatriation effort from the Office of Hawaiian Affairs and later 
confirmed with Dr. David McMurray at OSU that the letter had been sent 
to the organization address as provided on the NACD. We again urged the 
National NAGPRA Program to update our information (Attachment C) and 
further requested that the contact information for all Native Hawaiian 
organizations be updated as the information for the Hawai`i Island 
Burial Council, Maui/Lana`i Islands Burial Council, Molokai Island 
Burial Council, O`ahu Island Burial Council and Kaua`i/Ni`ihau Islands 
Burial Council were also incorrect (Attachment D).
    We have tried over the past 5 months to have the information 
updated. However, for reasons unknown to us, it has not happened. If 
you check the NACD right now, you will see the name of Kunani Nihipali 
and a Kailua address (Attachment E). This information has been outdated 
since November 2004. We were unaware of this since on November 7, 2004 
we informed federal agencies, museums we were actively consulting and 
the National NAGPRA Program of a change in our leadership and contact 
information.
    Most troubling throughout this effort has been the communication 
with National NAGPRA to update our contact information. After the OSU 
incident, the U.S. Air Force in Hawai`i relied on the same outdated 
information to attempt to send us important information. Of course, we 
did not receive it. After we learned of this breakdown, we again urged 
the National NAGPRA Program to update our information (Attachment F). 
The address used by the Air Force was the exact one on the NACD 
database. However, the National NAGPRA Program did not believe the 
problem was caused by the NACD even though that is the only place where 
this outdated contact information exists publicly (Attachment G). We 
are also advised to contact the BIA to be included in their database 
which we did only to find out their database is only for federally-
recognized Indian tribes (Attachment H).
    When we attempted to clarify our intentions (and not ``complain'' 
as interpreted by the National NAGPRA Program), we were instructed to 
contact the Office of Hawaiian Relations (OHR) to get on their list of 
Hawaiian organizations which we did (Attachment I). The National NAGPRA 
Program has since added a link to the OHR web page. However, when we 
checked recently, our contact information was no longer on the OHR 
database either (Attachment J).
    The end result is if you are a museum or federal agency attempting 
to contact our organization and you go to the NACD, you will obtain 
erroneous contact information for Hui Malama I Na Kupuna O Hawai`i Nei. 
If you happen to notice the 6-point font reference to the OHR website 
and link to their database, you won't find any contact information for 
us either. We requested National NAGPRA to again update our information 
(Attachment K).
    We have taken the time to explain in detail how much time and 
effort it has taken to update our contact information with the end 
result being that erroneous information is still contained on the 
primary federal database for consultation and that for all we know we 
are not being consulted on other relevant matters to NAGPRA for reasons 
beyond our control.
    The inability to update the NACD in a timely fashion has undermined 
our ability to conduct consultation and repatriation of our ancestor's 
remains in one instance and failed to provide us with timely 
information in a consultation involving a federal agency in another. 
Moreover, the discourse over the clarification of these issues seems to 
indicate a deeper problem with National NAGPRA (see Attachment L) and 
our organization.
    We recommend efforts be undertaken to improve the ability and 
manner by which the NACD is able to be updated with real time 
information otherwise its use undermines the very purpose for which it 
was created. We also do not believe that merely linking to another 
website necessarily guarantees that accurate contact information will 
be provided for Native Hawaiian Organizations especially when 
misleading information continues to be found on the primary database 
for contact information and the linked database experiences problems. 
At this point it may be best that the NACD delete our contact 
information entirely as it would be better not to have any information 
than to have misleading information.
2.  The National NAGPRA Program needs to increase its capabilities to 
        investigation failure to comply allegations.
    By letter dated March 2, 2004, Hui Malama I Na Kupuna O Hawai`i Nei 
filed allegations of failure to comply with NAGPRA against the Bernice 
Pauahi Bishop Museum asking the National Park Service to, ``initiate 
proceedings against the Bishop Museum, as provided in 43 CFR Sec. 10.12 
for failing to comply with the requirements of NAGPRA, specifically, 
for refusing to repatriate human remains and funerary objects to a 
culturally affiliated Native Hawaiian organization. We assert that Dr. 
Brown's refusal to repatriate constitutes an instance in which the 
Secretary of the Interior is authorized to assess a civil penalty.'' 
Over the next four and a half years, we emailed and telephoned several 
requests for updates urging National NAGPRA to investigate.
    Six months before the 5-year statute of limitations period was 
about to expire, we received a copy of a letter from the NPS Assistant 
Secretary for Fish and Wildlife and Parks to the Director of the 
Bernice Pauahi Bishop Museum substantiating 3 violations of NAGPRA 
involving human remains (Attachment M) and a second letter with the 
same date substantiating 2 violations of NAGPRA involving the 
unassociated funerary objects (see Attachment N).
    Although we are pleased with the outcome, the amount of time it 
took to complete indicates a need for additional investigators or as 
was recommended in the testimony of April 20, 1999 by Dr. Sherry Hutt 
before the Senate Indian Affairs Committee conducting a NAGPRA 
oversight hearing, the funding by congress of a federal prosecutor ``to 
evaluate and pursue sanctions for violations of the act under the civil 
penalties provision (25 USC 3007).''
    Hui Malama I Na Kupuna O Hawai`i Nei has since filed 3 additional 
failure to comply complaints against museums with several allegations 
in preparation. We are concerned that with the increase in workload and 
the availability of a single investigator for the entire National 
NAGPRA Program, the potential for failing to meet the 5 year SOL period 
is increased. Congress needs to act to fund additional investigators to 
assist the National NAGPRA Program to effectively address failure to 
comply allegations. Without this important function, there is no 
meaningful way to monitor museum compliance and even if successful, the 
amount of time involved further exacerbates the difficulty and pain 
associated with correcting historic wrongs against native people and 
their cultural property which NAGPRA was intended to lawfully and 
efficiently address.
3.  Diversion of NAGPRA grant appropriations by the National NAGPRA 
        Program from grant awards undermines tribal and Hawaiian 
        organization's ability to conduct important work under the law.
    Our review of the 2007 Makah/NATHPO Report indicated that a 
substantial amount of federal appropriates earmarked for the NAGPRA 
Grant Program was not utilized for that purpose and instead diverted 
for other uses (Attachment O). We would like to go on record as stating 
that we find this practice to by troublesome especially, since a 
proposal we submitted to update a NAGPRA cultural items database for 
use by Native Hawaiian families and organizations was denied funding by 
the National NAGPRA Program. The purpose of the database was to provide 
a single source for cultural items identified by museums and federal 
agencies that have the potential for repatriation under NAGPRA. We 
intended this database as a tool to assist our Hawaiian community in 
identifying the types of cultural items, how they were acquired, when 
and by whom, and the museums that families and organizations can 
contact to pursue any relevant claims. We believe such a project is 
worthy of federal appropriations and that similar projects should be 
the only use for such federal appropriations.
4.  Congress should inquire about the information placed on the 
        Culturally Unidentifiable Native American Inventories Database 
        for Native Hawaiians
    Attached please find a print out of the Culturally Unidentifiable 
Native American Inventories Database for Hawai`i (Attachment P). 
Notably, it lists Oregon State University as an institution when human 
remains representing a minimum of 5 individuals for whom cultural 
affiliation is unknown. The notes from the database were recently 
removed. This is the same institution that Hui Malama I Na Kupuna O 
Hawai`i Nei was not able to consult with due to the notification 
problems explained under # 1 above. We were not aware that there are 5 
individuals whose ethnicity is unknown, nor do we have any idea why 
this information is on this particular database and why explanatory 
information that was on it previously was removed.
5.  Congress should investigate the practice of withdrawing notices by 
        museums and the extent such practice is facilitated by the 
        National NAGPRA Program to the extent that the end result is a 
        failure to comply with NAGPRA by the museum for which it may be 
        assessed civil penalties by the Secretary of the Interior
    This concern is by far the most serious and in our opinion warrants 
an investigation into the practice for the reason stated in our 
heading. In 2004, we were sent copies of 7 letters (all dated Dec 13 
2004) from the Manager of the National NAGPRA Program to the Director 
of the Bernice Pauahi Bishop Museum acknowledging the museum's request 
to withdraw from publication in the Federal Register the following 
(Attachment Q):
      notice of intent to repatriate 86 unassociated funerary 
objects from the Kona District, Island of Hawai`i (N0741);
      notice of intent to repatriate 2 unassociated funerary 
objects from the Puna District, Island of Hawai`i (N0742);
      notice of intent to repatriate 5 unassociated funerary 
objects from the Kohala District, Island of Hawai`i (N0739);
      notice of intent to repatriate 43 unassociated funerary 
objects from Honomalino, Waipi`o Valley, and Kahala, Island of Hawai`i 
(N0264);
      notice of intent to repatriate 16 unassociated funerary 
objects from the Hamakua District, Island of Hawai`i (N0736);
      notice of intent to repatriate 110 unassociated funerary 
objects from the Island of Kaua`i (N0688);
      notice of intent to repatriate 230 unassociated funerary 
objects from Waimea, Kahala cemetery, Wailupe Valley, Niu, Kuli`ou`ou, 
La`ie, Kane`ohe, Island of O`ahu (N0262);
    We were shocked and contacted the National NAGPRA Program to 
request information clarifying these matters (Attachment R). However, 
we did not receive a response. We then wrote the Bernice Pauahi Bishop 
Museum (letter dated February 8 2005) requesting an explanation for the 
withdrawal of the seven notices of intent to repatriate a total of 492 
moepu or unassociated funerary objects (Attachment S). The Bishop 
Museum responded by letter dated February 15, 2005 (Attachment T). Hui 
Malama I Na Kupuna O Hawai`i Nei responded stating the following 
(Attachment U):
    ``Could I please be sent a listing of each of the seven notices, 
and which unassociated funerary objects the particular notice referred 
t, and the status of each in terms of the organization consulted with, 
their respective positions, and the issues the Bishop Museum sees as 
being outstanding for each particular set of moepu covered by the 
notice.
    ``I think the NAGPRA process would be much more smoother had the 
Bishop Museum provided this explanation to Native Hawaiian 
organizations, waited for responses as part of the consultation 
process, then decided whether to withdraw the notices or which ones to 
proceed with given that consultation that has already taken place. At 
least that way, interested Native Hawaiian organizations would have 
been consulted and apprised of the process the museum was deciding to 
take (and its concerns), rather than us finding out through the 
backhanded way of being copied on a confirmation letter. Don't you 
think? Please advise.''
    To date the Bishop Museum has not provided any such response and 
therefore is not conducting any consultation on these repatriation 
matters. It is important to point out that some of these unassociated 
funerary objects are related to burial sites for which the human 
remains and funerary objects have been repatriated and reburied, e.g. 
the reference to Kahala Cemetery on O`ahu, where all of the ancestral 
remains and their funerary possessions were reburied in 2005. This is 
disturbing if we have to re-open reburial sites to include funerary 
objects that we were not informed of in the first instance.
    In addition, the National NAGPRA Program did nothing when the 
Bernice Pauahi Bishop Museum declared a year long moratorium on NAGPRA 
compliance during which time they withdrew 7 notices of intent to 
repatriate cultural items. Can a museum unilaterally opt out of NAGPRA 
compliance? The Bernice Pauahi Bishop Museum did under the directorship 
of Dr. William Brown. The museum only completed one repatriation during 
that time, refused to repatriate human remains and unassociated 
funerary objects from Molokai (for which allegations of failure to 
comply was lodged against the museum and for which the NPS determined 
the museum to be in violation of NAGPRA on 5 counts), overturned a 
decision to repatriate items of cultural patrimony (Kalaina Wawae which 
are sandstone slabs with human footprints and boot marks carved into 
them from the island of Molokai, and reversed a completed repatriation 
(Kawaihae Cave Complex).
    Furthermore, as recently as June 2008, the Bernice Pauahi Bishop 
Museum withdrew a notice for 3 sets of human remains with shared group 
identity to Hui Malama I Na Kupuna O Hawai`i Nei, Hawai`i Island Burial 
Council and the Office of Hawaiian Affairs (Attachment V). Hui Malama I 
Na Kupuna O Hawai`i Nei, Hawai`i Island Burial Council and the Office 
of Hawaiian Affairs all submitted blanket repatriation requests to 
Bishop Museum in the past for human remains and funerary objects from 
the island of Hawai`i and conducted the repatriation of all known 
Hawaiian remains and funerary objects from this island. This is 
especially troubling since NAGPRA provides a deadline of November 16, 
1996 to inventory all Native Hawaiian human remains and to repatriate 
them upon request and Bishop Museum did not inventory these remains 
until now which means they are in violation of NAGPRA.
    The fact that the National NAGPRA Program facilitated the notice 
withdrawal (without prior consultation by the Bishop Museum with Native 
Hawaiian organizations including our organization) and by implication, 
facilitated the violation for which they (National NAGPRA Program) 
would be responsible for investigating when a failure to comply with 
NAGPRA allegation is lodged against Bishop Museum, is most troubling of 
all. How can this be? Such practice begs the question of who is 
responsible for assuring compliance when the NPS is content to allow 
museums to determine whether it should comply or not. The Bishop Museum 
has not conducted any consultation nor even notified Hui Malama I Na 
Kupuna O Hawai`i Nei of this particular repatriation. We found out 
about it be being copied once again on the letter confirming/
acknowledging the withdrawal. This is especially disturbing since we 
are 19 years into NAGPRA implementation and we seem to be regressing 
instead of progressing toward repatriation and reburial.
    By letter dated April 14 2009, Malama I Na Kupuna O Hawai`i Nei 
requested a list of all NAGPRA inventories submitted to the National 
NAGPRA Program by the Bishop Museum (Attachment W). To date we have not 
received any response. We were able to develop a table listing 
withdrawn notices by the Bishop Museum dated June 19, 2009 (Attachment 
X). We understand this practice/problem exists on a national scale and 
urge Congress to investigate whether this practice is consistent with 
NAGPRA. For our organizations, it represents a regression in the 
repatriation process, has undermine consultation and efforts to 
complete repatriation. We believe these practices cause a museum to 
fail to comply with NAGPRA.
Conclusion
    Mahalo (thank you) for the opportunity to comment on current NAGPRA 
implementation and to recommend steps that Congress can take to 
strengthen the process and improve the overall manner in which native 
people can repatriate and rebury their ancestral remains, funerary 
possessions, sacred objects and cultural patrimony. If there are any 
questions, please have your staff contact me at 622 Wainaku Ave, Hilo, 
HI 96720, by calling 808.646.9015 or by email at 
[email protected].
    [NOTE: Attachments have been retained in the Committee's official 
files.]

                                 
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