[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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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
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CONTENTS
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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.
______
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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.]