[Senate Hearing 112-157]
[From the U.S. Government Publishing Office]
S. Hrg. 112-157
FINDING OUR WAY HOME: ACHIEVING THE POLICY GOALS OF NAGPRA
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HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
JUNE 16, 2011
__________
Printed for the use of the Committee on Indian Affairs
_____
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COMMITTEE ON INDIAN AFFAIRS
DANIEL K. AKAKA, Hawaii, Chairman
JOHN BARRASSO, Wyoming, Vice Chairman
DANIEL K. INOUYE, Hawaii JOHN McCAIN, Arizona
KENT CONRAD, North Dakota LISA MURKOWSKI, Alaska
TIM JOHNSON, South Dakota JOHN HOEVEN, North Dakota
MARIA CANTWELL, Washington MIKE CRAPO, Idaho
JON TESTER, Montana MIKE JOHANNS, Nebraska
TOM UDALL, New Mexico
AL FRANKEN, Minnesota
Loretta A. Tuell, Majority Staff Director and Chief Counsel
David A. Mullon Jr., Minority Staff Director and Chief Counsel
C O N T E N T S
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Page
Hearing held on June 16, 2011.................................... 1
Statement of Senator Akaka....................................... 1
Statement of Senator Murkowski................................... 2
Statement of Senator Udall....................................... 23
Prepared statement........................................... 23
Witnesses
Gover, Kevin, Director, Smithsonian Institution's National Museum
of the American Indian......................................... 30
Prepared statement with attachment........................... 31
Isham, Ted, Cultural Preservation Manager/Tribal Historical
Preservation Officer, Muscogee (Creek) Nation.................. 68
Prepared statement with attachments.......................... 70
Macarro, Hon. Mark, Chairman, Pechanga Band of Luiseno Indians... 39
Prepared statement........................................... 42
Mittal, Anu K., Director, Natural Resources and Environment
Division, U.S. Government Accountability Office; accompanied by
Jeff Malcolm, Assistant Director............................... 2
Prepared statement........................................... 5
O'dell, Peggy, Deputy Director, National Park Service, U.S.
Department of the Interior; accompanied by John ``Jack'' Rever,
Director, Office of Facilities, Environment and Cultural
Resources, Bureau of Indian Affairs, U.S. Department of the
Interior....................................................... 25
Prepared statement........................................... 27
Wright, Jr., Hon. Mervin, Vice Chairman, Pyramid Lake Paiute
Tribe.......................................................... 55
Prepared statement........................................... 58
Appendix
Franklin, Reno Keoni, Chairman, National Association of Tribal
Historic Preservation Officers, prepared statement............. 118
Landreth, Natalie A., Counsel, Working Group on Native American
Culturally Unidentified Human Remains, prepared statement with
attachments.................................................... 105
Limp, William F., Ph.D., President, Society for American
Archaeology, prepared statement with attachment................ 135
McCarter, Jr., John W., President/CEO, Field Museum of Natural
History, prepared statement.................................... 94
Merritt, Elizabeth S., Deputy General Counsel, National Trust for
Historic Preservation, prepared statement...................... 88
Namu`o, Clyde W., Chief Executive Officer, Office of Hawaiian
Affairs, prepared statement.................................... 87
Response to written questions submitted by Hon. Daniel K. Akaka
to:
Kevin Gover.................................................. 145
Ted Isham.................................................... 142
Salt River Pima-Maricopa Indian Community, prepared statement.... 129
Stewart, Leo, Interim Chair, Board of Trustees, Confederated
Tribes of the Umatilla Indian Reservation, prepared statement.. 97
Thompson, George, Mekko, Ocevpofv Cuko Rakko (Hickory Ground
Ceremonial Ground), prepared statement with attachment......... 100
Trepp, Robert W., Member, Loca'pokv Tribal Town, Beaver Clan, and
Muscogee (Creek) Nation, prepared statement.................... 124
Trope, Jack F., Executive Director, Association on American
Indian Affairs, prepared statement............................. 91
Wesaw, Matthew, Chairman, Pokagon Band of Potawatomi Indians,
prepared statement............................................. 99
Worl, Dr. Rosita Kaahani, Vice Chair, Sealaska Corporation,
prepared statement............................................. 126
FINDING OUR WAY HOME: ACHIEVING THE POLICY GOALS OF NAGPRA
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THURSDAY, JUNE 16, 2011
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:40 p.m. in room
628, Dirksen Senate Office Building, Hon. Daniel K. Akaka,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. DANIEL K. AKAKA,
U.S. SENATOR FROM HAWAII
The Chairman. This hearing of the Committee on Indian
Affairs will come to order.
Welcome to the Committee's oversight hearing on Finding Our
Way Home: Achieving the Policy Goals of NAGPRA.
For thousands of indigenous ancestors, the road home has
been a difficult one. Many have not been able to begin their
journey home as they, along with their sacred objects, fell
into the possession of the Federal Government and museums
across the Country. This was the result of archaeological
excavations, construction projects and museum and university
research.
I know this can be painful and deeply personal topic for
many native peoples. My own people believe the Mana, the spirit
and power of a person, rests in the bones and connects families
between the generations. Native Hawaiian tradition holds that
what affects the bones can affect the future lives of the
progeny and the after lives of the ancestors of those bones.
Native Hawaiian burials are some of the most secretive in
the world, and I smile because we are still looking for some of
the places and the bones. Native Hawaiian children today are
still taught what to do if they encounter any ancestral bones.
When my people think about those `iwi kupuna or those
ancestors, whose bones are subjected to scientific scrutiny,
display or catalogue storage, there is a sense of outrage and
sorrow over the failure to care for the bones as our tradition
requires.
Our kinship and active connection with the remains of our
forbears and the objects that were sacred enough to warrant
burial with them is not unique. Native peoples across the
United States feel this connection. Acknowledging this
connection, the policy of repatriation was born.
Both the National Museum of the American Indian Act and the
Native American Graves Protection and Repatriation Act
established procedures for repatriation. Yet, over 20 years
after the enactment of these two laws, GAO found many Federal
agencies have not fully complied with NAGPRA. In addition, the
Smithsonian has much work to do in order to comply with the
Museum Act.
Today, we will hear from the GAO about their findings and
from the Administration and Smithsonian about what they are
doing to comply with Federal laws.
Finally, we will hear from tribal leaders about their
experiences, challenges and ideas to improve the process.
As many of you have noticed, the Committee works in a
bipartisan manner. It is always a pleasure to be working with
the other side of the aisle, and right now a very close friend.
We both belong to States not connected to the lower 48 that
have large indigenous populations. Senator Murkowski and I have
worked so closely on Native issues and she is doing a terrific
job here for her State of Alaska.
And I would like to ask her whether she has any opening
statement to make.
STATEMENT OF HON. LISA MURKOWSKI,
U.S. SENATOR FROM ALASKA
Senator Murkowski. I appreciate you have held this hearing
this afternoon on how we achieve the policy goals of the Native
American, the Repatriation Act, and how we, as you say, bring
it home. And it is an important issue for so many Alaska
natives from Barrow down to Ketchikan. And I appreciate the
attention that you are giving through this hearing.
I look forward to the witnesses today and working with many
of you on many of the issues that are so important to us.
The Chairman. Thank you very much.
As Chairman, it is my goal to ensure that we hear from all
who want to contribute to the discussion. So the hearing record
is open for two weeks, I just want you to know that. So if you
are thinking of something and you are not one of the witnesses,
you can still let us know to these letters. And I encourage
everyone to submit your comments through your written testimony
that you may send in.
I want to remind the witnesses to please limit your oral
testimony to five minutes today.
Serving on our first panel, from the GAO, Natural Resources
and Environment Division, is Director Anu Mittal. She is
accompanied by Jeffrey Malcolm, the Assistant Director.
And I want to say welcome to all, and Ms. Mittal, it is so
good to have you here. So please proceed with your testimony.
STATEMENT OF ANU MITTAL, DIRECTOR, NATURAL
RESOURCES AND ENVIRONMENT DIVISION, U.S.
GOVERNMENT ACCOUNTABILITY OFFICE; ACCOMPANIED BY JEFF MALCOLM,
ASSISTANT DIRECTOR
Ms. Mittal. Chairman Akaka and Senator Murkowski, thank you
for inviting us to participate in your hearing on repatriation
issues. Accompanying me, as you mentioned, is Jeff Malcolm, the
Assistant Director at GAO who manages our work on Native
American issues.
As you mentioned, GAO recently issued two reports: one on
Federal agency implementation of NAGPRA; and one on the
Smithsonian's efforts under the National Museum of the American
Indian Act. I would like to briefly highlight some of the key
findings from both reports.
With regard to Federal efforts to implement NAGPRA, our
review found that after almost 20 years, Federal agencies have
not yet fully complied with all of the requirements of the Act.
We found that the amount of work Federal agencies put into
identifying their NAGPRA items and the quality of the documents
that they prepared varied widely. As a result, only a few
agencies had a high level of confidence that they had
identified all of the NAGPRA items in their historical
collections.
We also reviewed the actions of the National NAGPRA Office
and identified two concerns with how it carried out some of its
responsibilities. For example, we found that the National
NAGPRA Office developed a list of Indian tribes for NAGPRA
purposes that is inconsistent with BIA's policy for federally
recognized tribes. And we found that the National NAGPRA Office
did not always properly screen nominations for the NAGPRA
Review Committee and inappropriately recruited nominees
contrary to the processes laid out in the Act.
The third NAGPRA-related area of concern that we identified
was a lack of systematic and comprehensive process to track
repatriation activities and the lack of a mechanism for
reporting this information to a central source. As a result,
this information is not readily or easily available to the
tribes or to Congress.
Based on our own independent data collection efforts, we
determined that as of September 2009, Federal agencies had
repatriated a total of 55 percent of the human remains and 68
percent of the associated funerary objects that they had
identified for repatriation.
Shifting to our review of the Smithsonian, we found that
the Smithsonian also has much work remaining to identify and
repatriate the Indian human remains and objects in its
collections that are subject to the NMAI Act. Specifically, we
found that in the last 21 years, the Smithsonian has only
offered for repatriation about one-third of the human remains
that may be in its collection.
Contributing to this slow process is the lengthy and
resource-intensive process that the Smithsonian uses to
identify and affiliate its repatriation items. As a result, we
suggested that Congress may wish to take certain actions to
expedite this process.
In addition, we identified four areas of concern in the
Smithsonian's implementation of certain repatriation-related
activities. First, although the Smithsonian established a
Review Committee as required by the Act, it limited the
committee's oversight to the repatriation activities of the
Natural History Museum, which we believe is inconsistent with
the Act.
Second, we found that neither the Smithsonian nor the
Review Committee submit annual reports to Congress on the
progress of repatriation. Although there is no annual reporting
requirement in the NMAI Act, given that the Smithsonian's
repatriation activities have continued well past the original
estimated five years, and may take several more decades to
complete, we believe that such information should be provided
to Congress.
Third, the Smithsonian has no independent appeals process
for tribes in the event of a dispute, and we believe that such
an appeals process should be established.
Finally, the Smithsonian does not have a policy on the
disposition of culturally unidentifiable items. The NMAI Act
does not discuss how these items should be handled and the
museum's repatriation policies do not cover this issue either.
Based on the findings of our reports, we made five
recommendations to improve Federal agency's compliance with
NAGPRA and four recommendations to improve the Smithsonian's
compliance with the NMAI Act. The agencies and the Smithsonian
generally agreed with our recommendations and have stated that
they will begin to implement them. We will continue to monitor
their progress.
In conclusion, Mr. Chairman, our two studies clearly show
that after two decades of effort, much work still remains to be
done to address the goals of both NAGPRA and the NMAI Act. In
this context, we believe that it is imperative for the agencies
to implement our recommendations to ensure that they are
efficiently and effectively fulfilling their statutory
responsibilities.
This concludes our prepared statement. Jeff and I would be
pleased to answer any questions that you might have.
[The prepared statement of Ms. Mittal follows:]
Prepared Statement of Anu Mittal, Director, Natural Resources and
Environment Division, U.S. Government Accountability Office
The Chairman. Thank you very much for your testimony.
Ms. Mittal, in your two reviews was there a demonstrated
need for additional funding, greater technical assistance, or
capacity building for tribes and native organizations to
successfully participate in the repatriation process?
Ms. Mittal. Funding was definitely an issue that we heard
repeatedly both from the agency perspective, as well as from
the tribal perspective, in terms of completing the process. The
National NAGPRA Office does implement a grant program and since
1994 through 2009, we found that the office has made $33
million of grants available to both tribes and the museums.
Two-thirds of this money has actually gone to the tribes,
but the amount of money requested by the tribes was more than
double of that. The tribes actually requested over $52 million
during that period of time, and less than half of their needs
were met through those grants.
When we spoke to the tribal officials that had not
repatriated items that were made available for repatriation,
they identified the lack of funding for repatriation activities
as one of their challenges. The number of grants made for
repatriation activities is actually very small. Out of the $33
million, only $1 million has been made available for
repatriation activities, which amounts to about six tribes a
year getting about $50,000 from the National NAGPRA Office for
repatriation activities.
The Chairman. Can you tell me whether there have been
requests for funds for this?
Ms. Mittal. There have been. Every year, there have been
twice as many requests for funds as have been available.
The Chairman. In your reviews of both the Federal agencies
and the Smithsonian, what mechanisms were in place regarding
oversight and enforcement? Did you find these mechanisms to be
effective?
Ms. Mittal. Well, with regard to the NAGPRA, there are
enforcement mechanisms in the Act. National NAGPRA does provide
oversight. The Review Committee also provides oversight, but
they do not have any tools or enforcement processes that they
can use to enforce or encourage the Federal agencies to comply
with the Act. So if they find that an agency is not complying
with the Act, they really don't have a hammer or a stick to
force them to comply.
On the Smithsonian side, what we found is that because the
Smithsonian limited the Review Committee's oversight activities
to the Natural History Museum, the American Indian Museum does
not fall into the purview of the Review Committee. So in our
opinion, we believe that the Review Committee's oversight
responsibilities should be expanded to cover both museums.
The Chairman. Thank you. One of your key recommendations is
that museums and agencies report on their progress annually to
Congress. Can you describe the data you believe should be
included in such a report?
Ms. Mittal. Sure. What the agencies have to do when they
make a repatriation is they have to permanently document that
repatriation activity. But there is no requirement for them to
compile that information or track it on an agency-wide basis.
And they also do not provide that information to a central body
like the National NAGPRA Office. So therefore, there is no easy
or ready information available to Congress or the tribes about
what the progress of repatriation has been by the agencies.
So we recommended that the agencies on an annual basis
should provide this information to the National NAGPRA Office.
The National NAGPRA Office should collate this information
across the Federal Government and provide this information to
the Review Committee and that information can then go to
Congress.
At the Smithsonian, what we found is the Smithsonian has no
reporting requirements to Congress, and so Congress has been
receiving no information on an annual basis on the progress
that the Smithsonian has made with regard to repatriation.
The Chairman. Well, thank you so much. This is important to
us and we will certainly work on this. So I want to thank you
very much.
Let me now ask Senator Murkowski for any questions she may
have.
Senator Murkowski. Thank you, Mr. Chairman.
Ms. Mittal, you mentioned some agencies do a better job in
terms of meeting the requirements of NAGPRA. Can you identify
who the better performers are and perhaps point out why they
are doing a better job? We always look to best practices around
here. What can we be learning from those that are actually
doing what we had hoped?
Ms. Mittal. Sure. We actually looked at the repatriation
activities of eight agencies in detail, because these are the
agencies that have very significant historical collections. And
what we found was that the Forest Service, the Corps of
Engineers, and the National Park Service were the three of the
eight agencies that actually had performed the most activities
to comply with NAGPRA.
The common features that we found in these three agencies
versus the other five that had not done as much was the fact
that they had centralized data, so they had better information
on where their collections were and who held their collections.
All of these collections are generally scattered at hundreds of
repositories across the Country. So if an agency doesn't know
where their collections are, they can't begin the process of
identifying the items that are subject to NAGPRA.
These three agencies had much better information about
where their collections were. These agencies also had very good
processes about going about identifying the items and they also
dedicated staff and resources to the effort. The other agencies
did not do such a good job in all of those areas.
Senator Murkowski. So resources, obviously, are always a
factor out there. But it also goes back to how they collect the
data and how that has been available. So we could be looking to
these three agencies for some ideas in terms of how to
translate those to the others.
Ms. Mittal. Yes, I think so.
Mr. Malcolm. And yes, if I may, a number of the agencies,
of course, within Interior are very decentralized, but even
with the Park Service, which is within Interior, they have a
centralized office there that works with all of the sub-offices
and units to track that information centrally. So you are
correct, resources is one thing, but effective use of the
resources you have is another. And having a centralized kind of
process to track the use of those resources across the agency
is a characteristic that all three of those have.
Senator Murkowski. I appreciate that.
Thank you, Mr. Chairman.
The Chairman. Thank you very much, Senator Murkowski.
Now, I would like to ask Senator Udall for any questions he
may have, and to welcome him to the Committee to make any
opening remarks.
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. Thank you, Chairman Akaka, very much. And I
would just like to put my opening remarks in the record and
just follow up with a question or two here.
[The prepared statement of Senator Udall follows:]
Prepared Statement of Hon. Tom Udall, U.S. Senator from New Mexico
I would like to thank the Chairman for holding this important
hearing. This is a serious issue and I hope that our Committee can help
to improve the Native American Graves Protection and Repatriation Act,
and implementation of the Act.
I thank the members of the panel for bringing their varying
experience and perspective on the Act and look forward to hearing from
each witness.
Sadly, the task of repatriation of Native American remains and
other cultural objects is a huge task and takes the involvement of many
partners, from federal agencies, to museums and research institutions,
to the tribes who should house the remains of their ancestors and other
culturally sensitive and sacred objects. I hope that this Committee can
work with all of these partners to ensure that this process moves
forward in the best possible way.
Senator Udall. Following on Senator Murkowski's comment
about best practices by the agencies, could you give us some
examples in a quantitative way of the three agencies, what
kinds of repatriations they have done and the numbers of
collections returned, that kind of thing?
I know these are so important when they happen. There was a
repatriation with the Jemez Pueblo that I remember. They had
big trucks that loaded things from the East Coast and they
drove all the way across America and came to the native sites
that they had chosen to put everything into the ground, and
huge turnout by the tribe and just a huge emotional feeling
about doing that.
And so each of these that you are going to tell me about
are an example of, I hope, where something like that happened
and where we had a success.
Please go ahead.
Mr. Malcolm. I will go over some of those numbers, but one
thing to point out I think that is very important is that once
the agency makes that cultural affiliation and determined who
the items belonged to and could potentially be repatriated to,
at that point, the ball kind of shifts to be in the tribe's
court and the tribe has to initiate that action to come forward
and say, yes, we are ready or we want those items returned. We
have identified an appropriate burial place for them or other
ways to care for those items and what not.
Senator Udall. And that can take a long time, right?
Mr. Malcolm. Correct.
Senator Udall. Because many times the tribe isn't
necessarily prepared.
Mr. Malcolm. Correct.
Senator Udall. And we shouldn't view that as a failure to
not happen quickly. It is just the tribe has been put on notice
and they are going out to try to figure out how they want to
deal with this. And when they do, which is the ultimate act,
then they receive the items and put them where they think is
the best place in terms of their traditions.
Mr. Malcolm. Correct. The example or the contrast I was
going to make was the Forest Service, which is one of the
agencies we have highlighted as being a good performer as far
as NAGPRA compliance. Their percentage of repatriation on their
human remains is only 15 percent, which on the surface is very
low, but again, it is really the tribes. In that area, there
have been some issues working out tribal things. So they still
haven't reached an agreement on how to return those items, so
they are in this kind of state where they are waiting for
tribal agreement on how to participate in that.
So we have a number of examples. And of the three agencies
that we have highlighted, for example the Corps of Engineers
has repatriated 623 human remains, about 86 percent, and the
National Park Service has repatriated 3,416 MNI, which is
minimum number of individuals, how they count the human
remains. And that is around 84 percent for them.
So the top agencies that we have identified, and these
agencies track that information so they know what items have
been repatriated and not, and they can provide information to
the tribes on what items are still waiting for them to come
forward and ask that they be returned.
Senator Udall. Right.
Ms. Mittal. I think the important thing to point out,
though, is that none of the agencies have fully identified all
of the NAGPRA items that are in their collections. What we do
know is what they have offered for repatriation. We have some
confidence in that number and we also have some confidence in
the number of items that have been repatriated. But we do not
have good information on what are the total number of items in
any one of these collections.
Senator Udall. Okay. Thank you very much. Thanks for your
work on this.
Mr. Chairman, I yield back.
The Chairman. Thank you. Thank you very much, Senator
Udall.
I want to thank you very much, Anu Mittal and Jeff Malcolm,
for your responses here. It will certainly help the Committee
with its work. And we will continue to look towards working
together with you on this.
Thank you very much.
Ms. Mittal. Thank you.
Mr. Malcolm. Thank you.
The Chairman. I would like to invite the second panel to
the witness table.
Serving on our second panel is Ms. Peggy O'Dell, the Deputy
Director of the National Park Service at the Department of
Interior. Also, she is accompanied by Mr. John Rever, the
Director of the Office of Facilities, Environment and Cultural
Resources at the Bureau of Indian Affairs.
Also, we have Mr. Kevin Gover, who is the Director of the
National Museum of the American Indian located in Washington,
D.C.
It is good to have all of you here. I want to welcome you
to the Committee.
Ms. O'Dell, will you pleased proceed with your testimony.
STATEMENT OF PEGGY O'DELL, DEPUTY DIRECTOR,
NATIONAL PARK SERVICE, U.S. DEPARTMENT OF THE
INTERIOR; ACCOMPANIED BY JOHN ``JACK'' REVER,
DIRECTOR, OFFICE OF FACILITIES, ENVIRONMENT AND CULTURAL
RESOURCES, BUREAU OF INDIAN AFFAIRS, U.S. DEPARTMENT OF THE
INTERIOR
Ms. O'Dell. Thank you, Mr. Chairman and Senator Murkowski
and Senator Udall. Thank you for the opportunity to appear
before you today to present the Department of Interior's views
on the implementation of the Native American Graves Protection
and Repatriation Act. We appreciate your attention to the
implementation of this important law.
If I may, Mr. Chairman, I would like to summarize my
testimony and submit my entire statement for the record.
The Chairman. I appreciate that.
Ms. O'Dell. I am accompanied by John ``Jack'' Rever from
the Bureau of Indian Affairs, who is available to assist with
questions.
The Department of the Interior and several Federal agencies
and museums that have NAGPRA obligations take their
responsibilities seriously; 10,000 Native American human
remains; 1 million funerary objects; and thousands of sacred
objects and objects of cultural patrimony are reported to have
been united with tribes and Native Hawaiian organizations.
The consultations between tribes and Federal agencies and
museums which occur as part of the NAGPRA process have resulted
in better relations between tribes and Federal agencies.
It must be recognized that fundamentally NAGPRA does not
change ownership of items. Permits granted by Federal agencies
confer access for the accumulation of data, but do not transfer
ownership to the permit holder. NAGPRA provides a process to
sort out possession and authority for control, which allows
those with priority rights to direct use and disposition.
The administration of the law follows two tracks, that of
Federal agencies and museums with NAGPRA obligations and that
of the national NAGPRA Program which administers some of the
Secretary of Interior's obligations for NAGPRA.
The National NAGPRA Program which is based in the National
Park Service has responsibility for these eight activities,
publishing inventory and repatriation notices for museums and
Federal agencies indicating their decision to transfer control
to tribes. We have reached almost 2,000 notices accounting for
42,000 Native American human remains, with 10,000 human remains
repatriated.
Creating and maintaining databases, there are now seven web
databases giving access and transparency to all NAGPRA
compliance information. We make grants with museums, Indian
tribes and Native Hawaiian organizations to consult on the
determination of cultural affiliations and identification of
cultural items, as well as the cost of repatriations.
From 1994 to 2010, 665 NAGPRA grants of nearly $38 million
were awarded. And repatriation grant requests have increased
300 percent in the past two years.
We investigate civil penalty allegations and prepare
assessments on penalties from museums that fail to comply with
provisions of the Act. We have had 166 counts that have been
investigated and $50,000 in penalties that have been collected
since the promulgation of regulations in 1997. We establish and
provide staff support to the Native American Graves Protection
and Repatriation Review Committee. We provide technical
assistance when there are excavations of Native American human
remains and cultural items on Federal and Indian lands. And to
date, Federal agencies have reported 111 dispositions.
We draft and promulgate implementing regulations. The rule
on disposition of culturally unidentifiable Native American
remains became final in 2010. A rule on disposition of
unclaimed human remains and funerary objects on Federal lands
is under review at the Department of the Interior. And the
complete review of the 1995 regulations is underway to resolve
issues and aid compliance.
And finally, we provide technical assistance for the Review
Committee and supporting law enforcement investigations of
illegal trafficking.
In addition to administering the National NAGPRA Program,
the National Park Service has responsibility for NAGPRA in
national parks. Since 2005, the two programs have been fully
separated in administration.
Federal agency and museum compliance with the NAGPRA
process begins with consultation with tribes to establish
inventories of Native American human remains, resulting in
notices of inventory completion. This is a necessary first step
to repatriation. In my prepared statement, you will see a
complete list of those inventories in detail.
A recent report by GAO in 2010 reported on withdrawal
notices, which are pre-publication drafts. Failure of a museum
or a Federal agency to publish a notice following inventory
halts the repatriation process. In 2004, there were over 300
drafts for which a museum or a Federal agency had not given the
National NAGPRA Program permission to publish in the Federal
Register.
In 2005, the National NAGPRA Program sent letters to the
originators of all of those documents and asked them to move
forward and today less than 20 of the aging drafts await
publication. So we have made significant progress there.
There are concerns about the implementation of NAGPRA in
the following two areas. In curation, there are issues of
access and use of Native American human remains and cultural
items that remain in museum and Federal agency collections.
Research institutions holding those collections desire more
time for study and tribes desire consultation on cultural
affiliation prior to more study. Federal agencies are seeking
to locate the extensive collections in non-Federal repositories
in order to complete the NAGPRA compliance process.
And in reporting collections, the National NAGPRA Program
does not audit any Federal agency or museum collections. It is
up to each one of those entities to report its inventory. The
GAO report requested that Federal agencies determine their need
for time and resources to complete their NAGPRA compliance and
to publish certain notices.
And finally, in my prepared remarks you will see the status
of the five recommendations that GAO made in the National
NAGPRA report and our responses to those recommendations.
That concludes my statement, Mr. Chairman. Jack and I will
be available for questions.
[The prepared statement of Ms. O'Dell follows:]
Prepared Statement of Peggy O'dell, Deputy Director, National Park
Service, U.S. Department of the Interior; accompanied by John ``Jack''
Rever, Director, Office of Facilities, Environment and Cultural
Resources,
Bureau of Indian Affairs, 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. We appreciate your attention to the
implementation of this important law.
The Native American Graves Protection and Repatriation Act of 1990
(NAGPRA) provides a process for determining the rights of lineal
descendants and Indian tribes and Native Hawaiian organizations to
Native American human remains, funerary objects, sacred objects, and
objects of cultural patrimony in the possession or control of Federal
agencies and museums and for human remains or items excavated or
discovered on Federal or tribal lands after November 16, 1990. These
items are basic to the humanity and definition of tribes. Resolution of
rights to long-separated items through NAGPRA provides a means to
restore long-denied rights and cultural heritage to tribes and to
Native Hawaiian organizations.
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, 10,000 Native American human remains,
one million funerary objects, and thousands of sacred objects and
objects of cultural patrimony are reported to have been united with
tribes and Native Hawaiian organizations. The consultations between
tribes and Federal agencies and museums, which occur as part of the
NAGPRA process, have resulted in better relations between tribes and
Federal agencies and have added to the body of knowledge on museum
collections.
It must be recognized that, fundamentally, NAGPRA does not change
ownership of items. Rather, it asks to whom these items should
rightfully belong, against a history in which Native American human
remains and cultural items were removed without permission from
descendants, and in which it was assumed that possession conferred
ownership. NAGPRA provides a process to sort out possession and
authority for control, which allows those with priority rights to
direct use and disposition. As a result, permits granted by Federal
agencies for scientific study on the land confer access to allow
accumulation of data, but do not transfer ownership to the permit
holder.
Administration of NAGPRA
The administration of the law follows two tracks: that of Federal
agencies and museums with NAGPRA obligations, and that of the National
NAGPRA Program, which administers some of the Secretary of the
Interior's obligations for NAGPRA. The National NAGPRA Program, which
is based in the National Park Service (NPS), has the responsibility for
the following activities for the Secretary of the Interior:
Publishing inventory and repatriation notices for museums
and Federal agencies in the Federal Register, which indicate
their decision to transfer control to tribes. These will
shortly number 2,000 notices accounting for 42,000 Native
American human remains, of which 10,000 have been repatriated
to tribes and Native Hawaiian organizations, and over one
million funerary and other cultural objects
Creating and maintaining databases. The database of
Culturally Unidentifiable Human Remains is now one of seven on
the web maintained by the National NAGPRA Program to give
access and transparency to all NAGPRA compliance information
and assist in consultation and repatriation. Maps of tribal
lands and other resources for consultation and repatriation are
found on the National NAGPRA Program website at www.nps.gov/
NAGPRA.
Grant Making to assist museums, Indian tribes, and Native
Hawaiian organizations in consulting on the determination of
cultural affiliation and identification of cultural items, as
well as for costs of repatriation when tribes bring ancestors
and items home. From 1994-2010, 665 NAGPRA grants were awarded
to museums and tribes, totaling nearly $38 million.
Repatriation grant requests have increased 300 percent in the
past two years.
Investigating civil penalty allegations and preparing
assessments of penalties on museums that fail to comply with
provisions of the Act. Since the promulgation of the
regulations in 1997, 166 counts have been investigated and
$50,000 in penalties collected. Each museum found to not be in
compliance has come into compliance by the end of the civil
penalty process.
Establishing and providing staff support to the Native
American Graves Protection and Repatriation Review Committee,
which resolves disputes and aids repatriation. Their report to
Congress is a nationwide view of accomplishments and barriers.
Providing technical assistance for prompt disposition when
there are excavations of Native American human remains and
cultural items on Federal and Indian lands. To date, Federal
agencies have reported 111 dispositions, accounting for almost
1,000 human remains and 9,000 funerary objects.
Drafting and promulgating implementing regulations. The rule
on disposition of Culturally Unidentifiable Native American
Human Remains became final in 2010; a rule on disposition of
``unclaimed'' human remains and funerary objects on Federal
lands is under review at the Department of the Interior; and a
complete review of the 1995 regulations is underway, to resolve
issues and aid compliance.
Providing technical assistance, through training, the web
and reports for the Review Committee, as well as support for
law enforcement investigations of illegal trafficking. Training
is provided to upwards of 2,000 participants annually in in-
person, webinar and video training. The National NAGPRA Program
responds to thousands of inquiries annually.
In addition to administering the National NAGPRA Program, the
National Park Service has responsibilities for NAGPRA in national
parks. Since 2005, the two programs have been fully separate. At that
time a consultative relationship between the Assistant Secretary of
Fish and Wildlife and Parks and the Assistant Secretary of Indian
Affairs was also established. The Office of the Solicitor, representing
both agencies, consults on regulations and assists the National NAGPRA
Program functions, including training.
Federal agency and museum compliance with the NAGPRA process begins
with consultation with tribes to establish inventories of Native
American human remains resulting in notices of inventory completion.
This is a necessary first step to repatriation and works in conjunction
with the distribution of collections summaries to tribes resulting in
consultation and claims for cultural items resolved in notice of intent
to repatriate notices. Dedication to the process is seen in the
following:
There have been 1,539 summaries and 459 statements that no
NAGPRA collections summary was required submitted to the
National NAGPRA Program from 770 museums and 286 Federal agency
units. As a result, 531 notices of intent to repatriate have
been published, accounting for 144,782 unassociated funerary
objects, 4,321 sacred objects, 962 objects of cultural
patrimony, 1,217 objects that are sacred and patrimony, and 292
undesignated items.
There have been 1,119 inventories submitted to the National
NAGPRA Program and 1,441 notices of inventory completion
published, accounting for over 41,000 Native American human
remains and 1 million funerary objects associated with them.
All notices are on the web.
Museums and Federal agencies prepare two inventories. One
inventory lists those individuals for whom cultural affiliation
can be determined. The list includes the decision of the museum
or Federal agency. If information is lacking by which a
determination can be made on a reasonable basis, the Native
American individual is listed on the second list-the
``inventory of culturally unidentifiable'' (CUI) Native
American human remains. A public access database of CUI was
launched in fall 2005 by the National NAGPRA Program to assist
in further consultation and identification. To date there are
125,671 individuals listed on the database and 939,385 funerary
objects associated with those individuals. The number of CUI
subsequently culturally identified to date is 5,544 and the
number of CUI transferred by a disposition to a requesting
tribe, without a cultural affiliation determination, is 3,960.
Withdrawal of Notices
In 2010, the Government Accountability Office (GAO) prepared a
report on NAGPRA, which includes findings for the Bureau of Indian
Affairs (BIA), the Bureau of Reclamation, the Bureau of Land
Management, the Fish and Wildlife Service, the National Park Service,
the Army Corps of Engineers, the U.S. Forest Service and the Tennessee
Valley Authority. It reported on withdrawal notices, which are pre-
publication drafts. Failure of a museum or Federal agency to publish a
notice following completion of an inventory halts the repatriation
process. Compliance requires publication of a notice and not mere
submission to the National NAGPRA Program of a draft document. In 2004,
there were over 300 drafts, 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.
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. The National NAGPRA
Program tracks human remains listed in inventories, through resolution
in a notice, and finally into transfer of control to tribes and Native
Hawaiian Organizations. The National NAGPRA Program does not withdraw a
notice, but facilitates the publication of notices. Less than 20 of the
aging drafts await publication.
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. Research institutions holding collections desire
more time for study and tribes desire consultation on cultural
affiliation prior to more study. Federal agencies are seeking to locate
the extent of collections in non-Federal repositories in order to
complete the NAGPRA compliance process.
Reporting Collections: 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. It is up to each Federal agency or museum to report its
inventories. The GAO report requested that Federal agencies determine
their need for time and resources to complete NAGPRA compliance and
publish certain notices. Federal agencies hold one-fifth of NAGPRA
items in collections, while museums hold four-fifths of all
collections. Three-fourths of the total number of culturally affiliated
individuals in Federal agency collections are represented in published
notices of inventory completion.
NPS Response to 2010 GAO NAGPRA Report
The 2010 GAO report on NAGPRA made five recommendations:
Recommendation 1: Develop and provide to Congress a needs
assessment listing specific actions, resources, and time needed
to complete the inventories and summaries required by NAGPRA
sections 5 and 6 for their historical collections.
Response: Federal agencies are compiling their needs
assessments and timelines, which are due to Congress by June
30, 2011. These responses will be submitted by the deadline.
Recommendation 2: Develop and provide to Congress a timetable
for the expeditious publication in the Federal Register of
notices of inventory completion for all remaining Native
American human remains and associated funerary objects that
have been culturally affiliated in inventories.
Response: Federal agencies are compiling their timetables,
which are due to Congress by June 30, 2011. These responses
will be submitted by the deadline.
Recommendation 3: Reassess whether Alaska Native Claims
Settlement Act (ANCSA) corporations should be considered as
eligible entities for the purposes of carrying out NAGPRA given
the Solicitor's opinion and BIA policy concerning the status of
ANCSA corporations that has been completed.
Response: The Solicitor issued a memorandum on March 18, 2011
and the Department of the Interior will shortly publish an
amendment to the NAGPRA regulations to delete the regulatory
definition of ``tribe'' to be consistent with the statute,
which does not include Alaska corporations as tribes.
Recommendations 4: Strictly adhere to the nomination process
prescribed in the Act and, working with the Department of the
Interior's Office of the Solicitor, as appropriate, ensure that
all Review Committee nominations are properly screened to
confirm that the nominees and nominating entities meet
statutory requirements.
Response: The nomination process for NAGPRA Review Committee
members was modified in 2008 and all selections from that time
forward have followed the GAO recommendations.
Recommendation 5: Request that the Department of the Interior
request Federal agencies to report their human remains actually
repatriated to tribes to the National NAGPRA Program on an
annual basis and that the National NAGPRA Program report the
information to the NAGPRA Review Committee for inclusion in
their report to Congress.
Response: The National NAGPRA Program began reporting the
numbers to the Review Committee at their fall meeting in 2010
and in each report since. The numbers of human remains
repatriated from Federal agency and museum collections to
tribes and Native Hawaiian organizations will appear in the
Review Committee Report to Congress for 2010, to be finalized
on June 22, 2011, and in each annual report in the future.
Mr. Chairman, that concludes my statement. I will be pleased to
answer any questions that you may have.
The Chairman. Thank you very much for your testimony, and
good to have you here.
Ms. O'Dell. Thank you.
The Chairman. Mr. Gover, will you please proceed with your
testimony?
STATEMENT OF KEVIN GOVER, DIRECTOR, SMITHSONIAN
INSTITUTION'S NATIONAL MUSEUM OF THE AMERICAN
INDIAN
Mr. Gover. Thank you, Mr. Chairman. Good afternoon to the
Members of the Committee.
At the Smithsonian, our repatriation programs operate on a
belief that it is important that we return these remains and
objects to the correct community, to the correct tribe, and
that the real objective of the Act is not really to expunge
these materials from these collections, but rather to respond
to the tribes in the way that they wish concerning the
disposition of these remains.
And so that is to say the objective is to repatriate, and
not to purge the collections. The objective is not simply to
remove all human remains from museum collections, only those
that have been requested and whose affiliation has been
established.
And that is why we are required by the statute to review
the best available scientific and historical documentation in
making these decisions about the affiliation of particular
remains with particular communities.
We do appreciate the work of the GAO and the patient and
collegial way in which the review was conducted. We learned a
great deal in the process and, as you have read, the GAO did as
well. The report raises several issues. We began working on
those internally at the Smithsonian on just how to resolve
those issues.
We do want to note and say that it is gratifying that the
tribes which the GAO contacted concerning the repatriation
processes of the two museums at the Smithsonian with these
sorts of collections expressed satisfaction with how the S.I.
conducts its repatriation process.
We have tried to establish a process that is open, that is
collegial, that is not adversarial. It is not a matter of us
protecting our protections from these communities, but rather
working together with these communities to find a resolution
that is satisfactory to them and not to us.
So for us, this program is not just about removing objects.
It is about the proper culturally sound care of these things
that perhaps some could be repatriated, but for any variety of
reasons have not. And so even if at the end of a process the
tribe chooses not to have objects or remains returned to them,
we want to continue to care for those materials in the way that
the tribe wishes for them to be cared for.
These collections came together at the end of the 19th
century and early 20th century. And that was a time when
anthropology really considered itself to be conducting a
salvage operation in connection with Native American
communities. The presumption was that these communities would
not continue to exist and so it was important that science get
out there, capture these materials and preserve them for
posterity.
Well, it turns out these communities are still here and
they don't seem to be going anywhere soon. And so Congress has
addressed the issue in an appropriate way by saying to
institutions like the Smithsonian which is, in the end, a
federally sponsored institution, that we need to work with
these tribes in order to arrange for a proper disposition of
these materials. That is our objective.
And so while we are anxious to do this with all the
expedition possible, what is of greatest interest to us, what
is of greatest import to us and, we believe, to the tribes with
which we work, is this ongoing relationship concerning the care
of the materials that originate in these communities.
Again, upon request, we will continue to return those items
that are subject to the statute. We may on occasion return even
objects that are not subject to the statute because that is the
nature of our relationship with these communities.
But what we don't want to do, and the portion of the GAO
report that I personally at least, and I think most of us at
the institution really struggle with, is the idea that we
should dispose of these materials, in particular these human
remains, without making our very best efforts to determine
their origin. We think it is more important to see that they
return to the correct communities than that they simply leave
the collection.
There will come a point, of course, at which we have made
our best efforts and determined that we simply will not be able
to determine the origin of some of these remains. And so GAO is
absolutely right to say we should have an open, publicly
developed policy for dealing with those circumstances. And so
to that end, we will be doing so expeditiously and working with
the tribes to develop our response.
So I will stop there, Mr. Chairman, and would be grateful
to answer questions.
Thank you.
[The prepared statement of Mr. Gover follows:]
Prepared Statement of Kevin Gover, Director, Smithsonian Institution's
National Museum of the American Indian
Mr. Chairman and members of the Committee, I am Kevin Gover,
Director of the Smithsonian Institution's National Museum of the
American Indian. I am here today on behalf of the Smithsonian
Institution to share with you our record in implementing the
repatriation provisions of the National Museum of the American Indian
Act.
The Smithsonian Institution is home to two museums that possess
collections of Native American materials. The National Museum of
Natural History (NMNH) collections include collections of
archaeological, ethnological, and physical anthropological materials.
The National Museum of the American Indian (NMAI) holds archaeological
and ethnological collections. The NMNH opened its doors in 1910. The
NMAI was established by Congress in 1989 in the National Museum of the
American Indian Act, and its Mall museum opened its doors in 2004. Both
Smithsonian museums possess vast collections compiled largely in the
19th and early 20th centuries.
Collecting practices in those times were very different from our
current collecting practices. Those old practices sometimes disregarded
the values and sensibilities of the Native communities from which the
materials originated. As a result, both collections contain materials
that properly should reside in the Native communities from which they
came. When Congress passed the NMAI Act in 1989, it directed the
Smithsonian to undertake the repatriation of human remains and funerary
objects. In 1996, Congress amended the NMAI Act to add sacred objects
and objects of cultural patrimony to the materials to be repatriated
when requested by a tribe or eligible individual.
The Smithsonian has assumed the responsibility with considerable
energy. In just over twenty years, the Smithsonian has offered for
repatriation nearly 6,000 human remains, over 212,000 funerary objects,
and over 1200 sacred objects and objects of cultural patrimony. For a
variety of reasons ranging from the cultural to the practical, not all
of these offers were accepted. Because of the vastness of the
collections of the two museums, moreover, many remains and objects that
might be repatriated are still in the collections despite the
aggressive repatriation programs of the two museums.
As you know, the General Accountability Office (GAO) has completed
a review of the Smithsonian's repatriation activities. We appreciate
the GAO's work and the manner in which it was conducted, and recognize
that the report raises worthy issues for the consideration of this
Committee and the Smithsonian leadership.
Perhaps the most important issue presented by the GAO report
involves the tension between the statutory objective of promptly
returning eligible materials to requesting tribes and individuals on
the one hand, and the statutory objective of returning eligible
materials to the correct claimants on the other. As noted in the
report, the NMAI Act requires the Smithsonian to consider the best
available historical and scientific documentation in making its
repatriation decisions. This requirement imposes a higher burden of
proof on Smithsonian museums than is contemplated under the Native
American Graves Protection and Repatriation Act (NAGPRA). It is a
requirement both burdensome and necessary. The Smithsonian is committed
to the advancement and diffusion of knowledge. Knowledge is the product
of thorough research and analysis. Such scholarship produces
conclusions that are as accurate as practicable. In the context of our
repatriation activities, this means that our decisions should correctly
determine the cultural affiliation of human remains and objects to be
repatriated.
Turning to the specific recommendations contained in the GAO
report, we share the report's objective of maintaining an orderly,
effective, and transparent program of repatriation. To this end, the
Smithsonian will consider ways in which the role of Repatriation Review
Committee could include some relationship with the repatriation program
at the NMAI. Because, historically, the RRC has not been involved with
the repatriation decisions rendered of the NMAI, the precise nature of
the relationship will be the subject of further discussions with key
stakeholders. The NMAI Board of Trustees brings the same scholarly
credentials and cultural expertise to the task as the RRC. The NMAI
Board of Trustees must by statute have a Native American majority; the
Trustees collectively are knowledgeable of Native cultures and
committed advocates of the preservation of Native culture. The Board
plays the independent advocacy role that the Congress anticipated when
it empowered the Board of Trustees with ``sole authority'' over the
NMAI collections, subject to the general policies of the Smithsonian.
Nonetheless, we recognize the benefit of working more closely with the
Repatriation Review Committee and we are evaluating the most effective
and efficient way to enable that.
We agree with the GAO that a system of periodic reporting to
Congress on the progress of the Smithsonian's repatriation activities
should be established. By virtue of the GAO's report, we recognize that
Congress is indeed interested in the scope of repatriation on a
national scale and the Institution will develop a reporting mechanism
through which the Secretary of the Smithsonian can provide to Congress
a complete picture of its robust and successful repatriation program.
The Smithsonian also agrees with the GAO that the process of
appealing repatriation decisions by the two museums should be changed.
We note, though, how rare it has been for repatriation decisions by the
museums to be challenged. Indeed, in over twenty years, there have been
only two cases in which a Smithsonian museum's decision was challenged.
The collegial processes pursued by both museums and the roles played by
the RRC and the NMAI Board of Trustees in the process have resulted, in
the overwhelming majority of cases, in the acceptance of the museums'
decisions by those who have requested repatriations.
In the interest of transparency and consistency, we are examining
different procedures for appeals. We agree with the GAO that the
decision maker on an appeal from a museum's decision should not have
been involved in the museum's decision. We will consider different
options and establish a new process that has these characteristics.
We agree with the GAO that the Smithsonian should adopt and publish
policies for the handling of culturally unaffiliated items in the
collections. We note that the Smithsonian's obligations with regard to
such items are different from those established in NAGPRA. We believe,
therefore, that our policies should not necessarily be the same as
those established by the Interior Department for NAGPRA institutions,
and that such policies should be developed by the NMAI and NMNH in
consultation with tribal governments. We will embark on such a
consultation process promptly.
Thank you for the opportunity to testify, Mr. Chairman. I would be
happy to answer any questions the Committee may have.
The Chairman. Thank you very, very much, Mr. Gover, for
your testimony and your spirit of working with the tribes.
Ms. O'Dell?
Ms. O'Dell. Yes, sir?
The Chairman. We will hear from tribal leaders today about
the importance of consultation when it comes to repatriation.
What is the department doing to ensure that tribes are
consulted in the repatriation process? Is there room for
improvement in these consultations?
Ms. O'Dell. I think consultation is reported to be the best
tool that we have to be able to carry out the NAGPRA law. And
we have created a transparent system of data. We have collected
a lot of data and we have put all of that up on the website for
anyone to access. And we use that as a way to communicate as
best we can with tribes.
The tribes look at that data and they get an understanding
of whether or not they have any remains or objects that might
belong to them, and they begin the consultation process with
us. We conduct a lot of training. One of the missions that we
have in running the National NAGPRA Program is to conduct
training for tribes, for museums and for Federal agencies to
help them understand how best to go through the process of
identifying where these remains belong and how best to
repatriate them.
The Chairman. Well, that is great.
Throughout your testimony, Mr. Gover, you agree with many
of the GAO recommendations. How will you prioritize and
implement these recommendations? And can you provide the
Committee with a timeline on when these recommendations may be
fully implemented?
Mr. Gover. I can't, not at this moment. But I think if you
will give me the opportunity to go back and consult with the
Natural History Museum and with the Secretary, we will provide
that in writing. I think you will find that it will not be a
long time; that there is some work we need to to internally,
but these aren't enormous tasks. And we would be happy to
provide a report on our progress very promptly.
The Chairman. Thank you very much for that. You can tell
that we are trying to set a timeframe to get some of these
things acted on, and that is our spirit. So we look forward to
working with you.
Mr. Gover. If you give me a deadline, Mr. Chairman, I will
meet it.
The Chairman. Ms. O'Dell, in 2005, this Committee held a
hearing on NAGPRA which focused on an amendment to the
definition of Native American. Does the department have a
position on this proposed amendment?
Ms. O'Dell. Does this have to do with Alaska Native
Corporation, sir?
The Chairman. This has to do with the proposed amendments
to redefine the definition of Native American in NAGPRA, which
means, of or relating to a tribe, people, or culture that is
indigenous to the United States.
Ms. O'Dell. I am sorry, sir, I haven't heard any recent
discussion, but I will be happy to get back to you with that
answer.
The Chairman. All right. Thank you very much. I am glad we
are coming to the point where we are trying to get responses.
Ms. O'Dell. Absolutely.
The Chairman. And thank you very much for that.
So let me ask Senator Murkowski, I am going to call for a
second round, so I will pass it on to her at this point in
time.
Senator Murkowski?
Senator Murkowski. Thank you, Mr. Chairman.
Ms. O'Dell, what does it cost for an average repatriation?
Is there an average?
Ms. O'Dell. I don't know that there is an average. The way
repatriation, the way we fund them out of the National NAGPRA
Program is that a tribe will make a request for a certain
dollar amount for a repatriation. And so far I think we have
been spending about $150,000 a year on that and we have never
had to turn down a request from a tribe for a repatriation.
Senator Murkowski. So you are saying that you have got
enough money to grant out to tribes, anybody that is looking to
go through this process, so that funding of it is not an issue.
Ms. O'Dell. I would say that it is probably circumstantial.
And as more information becomes available and tribes are able
to identify more of their remains to come home, that there may
be a point in time where that may not be a true statement, but
to this point, we have been able to grant the dollars that the
tribes want.
Senator Murkowski. So there is no backlog, to your
knowledge, out there of anybody who has made a request who has
not yet received the funding.
Ms. O'Dell. Not to my knowledge.
Senator Murkowski. Okay. You are like the only entity that
I have ever talked to that says that we have enough money for
the program that we are currently engaged in. Don't tell
anybody who is working through this budget issue and problem
that you are doing okay.
Because I think it is an important aspect of this, and what
I have been told is that it is a considerable financial
undertaking to go through the repatriation process. And not
only costly financially, or from a financial perspective, but
the time involved and the individuals that are involved with
making it happen.
I know that within the State of Alaska, and you mentioned
in response to the Chairman, you mentioned is this about the
Alaska Native corporations. One of the benefits that we have
seen in the State of Alaska is our ANCs, our Alaska Native
corporations, are on a stronger financial footing than most of
our Alaska Native village tribes and are in a better position
to thereby invest their own funds in the NAGPRA mission out
there.
In March, I was notified by the National Park Service that
it intends to change their regulations in a way that would make
ANC's ineligible to receive any NAGPRA grants and participate
in the NAGPRA consultations. And it is this whole aspect of the
consultation I think that is troubling as well.
But we were told that the reason for this change is that
the NAGPRA statute, unlike probably a dozen or more other
Federal Indian statutes, chooses to narrowly define the term
Indian tribe in a way that does not include Alaska Native
village and the regional corporations.
This is a pretty substantial change from the Interior
Department's position in the past where they have included
Alaska Native corporations as participants on an equal basis
with other Indian tribes. And we recognize that ANCs are not
tribal governments, but they are considered tribes for purposes
of dozens of other Federal laws. Our ANCSA Board of Directors
are made up exclusively of native people. ANCs were statutorily
created by Congress to manage the land and the resources of
tribal people.
And as I mentioned, ANCs have a greater capacity, most
clearly, and the resources to reclaim the property, whether it
is the cultural objects or the remains, and really the greatest
capacity to reach the most native people.
So given how Alaska tribes clearly can benefit from the
policy goals of NAGPRA in terms of the repatriation and all
that comes with it, and the knowledge that ANCs are better able
to get around the financial issues, why the change in policy?
Ms. O'Dell. It is based on the solicitor's opinion of
reading the NAGPRA law and trying to make our regulations
support that and be consistent with what the law says.
Senator Murkowski. So would the department object if I were
to offer legislation that expressly included Alaska Native
corporations in the definition of Indian tribe under NAGPRA in
order to clear up any confusion or issue that might remain?
Ms. O'Dell. I think that would help clarify things, ma'am.
Senator Murkowski. And I am assuming by that statement
that, yes, it would clarify things and that the department
wouldn't have objection to Alaska Native corporations being
eligible for the NAGPRA consultation and just being able to
work within NAGPRA.
Ms. O'Dell. Correct. It is just a matter of being in
concert with the law.
Senator Murkowski. I appreciate that. We want to make sure
that everybody is doing what we need to be doing.
Mr. Gover, I wanted to ask you one quick question. And this
is as it relates to international museums. Within the Museum of
American Indian, do we have agreements with other museums
outside of this Country with regards to international
repatriation that you are aware of?
Mr. Gover. Senator Murkowski, we have no standing
agreements with institutions in other countries. We have on
occasion repatriated materials to other countries, working both
through the national governments there and with the local
indigenous communities where we believe these materials
originated. But we have no continuous standing agreements.
Senator Murkowski. Is that something that other countries
have? Because I know that we have, or I believe that we have
ancestral remains and cultural items within collections in
international museums outside of our borders. That is correct.
Mr. Gover. We do. In fact, there are native materials and
native human remains throughout the globe in different museums.
I can say based on a conversation I had with the Australian
ambassador a few months ago that Australia is pursuing a very
aggressive program of attempting to repatriate all remains from
Australia that are in museums outside Australia to be returned
there. And that their policy will be upon request to return
materials in Australian museums to other countries where they
originate.
And so that is a national policy, but it is not embodied in
treaty or agreement of any kind.
Senator Murkowski. So it really would be collection by
collection, where we would go to a specific museum and make
that request for repatriation. Is that how it works?
Mr. Gover. Yes, Senator, that is how it works.
Senator Murkowski. All right. I thank you.
I thank you all, and I thank you, Mr. Chairman, for the
hearing this afternoon. I won't be able to stay for the third
panel, as I have another engagement, but it was important to be
able to get some questions answered here today.
So thank you.
The Chairman. Well, thank you very, very much for being
here with us, Senator Murkowski.
Mr. Gover, the NMAI Act, which specifically mentioned
Native Hawaiian organizations, can you please discuss the
significance of this inclusion in the Act and the Smithsonian's
efforts to repatriate items to Native Hawaiian organizations?
Mr. Gover. Yes, Mr. Chairman. Obviously, in the passage of
the NMAI Act, Native Hawaiian peoples were dealt with in some
very interesting ways, essentially as the equivalent of
American Indians and the indigenous people of the Western
Hemisphere. And so, for example, in the NMAI Act, the
Smithsonian is just as it is expected to repatriate human
remains, funerary objects, sacred objects to American Indian
tribes, it is also expected to do to, it is directed to do so
when it comes to materials from Hawaii.
And so I learned just this morning, because I thought you
might be interested, that when the Act was passed in 1989, we
had in the Smithsonian collections 180 individuals, the remains
of 180 individuals and five funerary objects. And I am pleased
to be able to report that all of those have been repatriated to
Native Hawaiian communities.
Let me just say, if I may, Senator, when I was at the
Interior Department not that long ago, it was the time when
both Congress and the Administration were considering the
status of Native Hawaiian people under Federal law. And as you
know, we presented a report at the direction of Congress in
which my agency participated. And again, speaking for myself, I
just wanted to say that we are grateful for the work that you
are doing on that issue now.
The Chairman. Well, let me comment on that and thank you so
much for your interest and your involvement at that time, which
was really the beginning of what we are trying to do and I
appreciate it very much.
Ms. O'Dell, the 2010 GAO report stated that BIA, along with
the Tennessee Valley Authority, had done the least amount of
work to identify NAGPRA items and include them in their
summaries and inventories. Since that report, what actions has
BIA taken to address this issue?
Ms. O'Dell. All of the Federal agencies have been working
very hard since the GAO report. And since I have Mr. Rever with
me, I will let him address that question for the BIA, if that
is all right with you, Sir?
The Chairman. Yes.
Mr. Rever. Thank you very much, Mr. Chairman, for allowing
me the opportunity to address that issue.
It is true that in 2009, there were three vacancies on the
staff for handling museum collections, and largely NAGPRA
issues, two curators and one archaeologist. At that time, those
positions had languished for some while and we had fallen
behind in our attention to the NAGPRA Program.
At that time, and I point out on page 46 of the report,
that GAO noted that the number of human remains published in
notices was 464, with 443 repatriated, which indicates that it
was not being ignored; that actually it was being taken when
the remains were identified and the cultural affiliation made.
But since that time, those numbers have doubled. We have
published notices of 828 NMIs and 194 of those have been
repatriated. The other remaining 36 remain. They have been
noticed. There have been none claimed from the tribes to
repatriate for a variety of reasons, some of which have to do
with cultural reasons and the coordination and consultation of
multiple tribes.
Because if you look at the notices, what you find is a
cultural affiliation with more than one tribe. And we are very
pleased to report that working closely with the Park Service
and with the tribes that are included in those notices, we have
been able to effect a very high rate of repatriations because
the tribes themselves have, in working with us, reconciled the
difference between the cultural affiliations and who would take
possession of the remains and treat them with respect and the
proper circumstances.
And we are very pleased to be able to report that. We have
made tremendous progress and achievement in this area. There
are a ways to go. For instance, we know that we have 61
repositories of NAGPRA items. Now, those 61 are included across
all of the lower 48 States, but there are 15 States that we
have not inventoried. We have not made an effort to go out and
look at the potential NAGPRA items that would be under our
control, but in the possession of those agencies.
We don't have anything in our possession. Everything is
outside the Federal agency BIA. However, those are the 15 least
likely States where items may be. We do, though, because we are
working very closely with the National Park Service. Whenever a
museum identifies a cultural items that is subject to the
NAGPRA provisions and they have not notified Indian Affairs, we
are notified by the Park Service. And then we take action for
joint publication notices and that sort of thing.
So we have made tremendous progress and we are very pleased
to be able to report that to the Committee.
The Chairman. Thank you very much.
Mr. Gover, can you provide the Committee with a few
examples of culturally unaffiliated items within the
collections and describe how the Smithsonian's obligations with
regard to these items differ from those established under
NAGPRA?
Mr. Gover. Sure. The issue is whether any given bone
usually can be properly associated with a particular community
or as having a particular origin. Sometimes, it will come to
us, for example, what comes to mind is a case where we had some
modified material where there were human vertebrae into which
had been inserted quite post-mortem, this was not the cause of
death, arrowheads into these vertebrae.
Well, there is really no particular evidence to indicate
that they relate to a given tribe. We know the area that they
are from, but we also know that the arrowheads are not
necessarily from that region. So there are some very strange
things in museum collections sometimes, and that is a good
example.
Now, we do think we can put together enough evidence to
deal with that particular situation, but first glance, there is
no reason to associate such things, which were basically made
for tourist sale, there is no reason to associate such things
with any particular community. We will make every effort to do
so.
The more common case is going to be where the record
supporting a particular skeleton, for example, isn't adequate
to tell us exactly where something came from. And so those
particular remains may have been part of a much larger group
that arrived at some museum well over a century ago and were
simply inadequately documented.
Now, there because neither of the Smithsonian museums
engage in any sort of destructive testing, we may never know
exactly where these particular remains came from. And in
reality, it can't even be estimated. We just may never know.
Finally, there are materials in the collections that have
been, the phrase we use is culturally modified. And so you
might find a particular garment or a necklace that includes a
human bone or locks of human hair. And the question then
becomes: Are we attempting to identify the owner of the
necklace or the owner of the hair? And how do we make sure that
is the same person?
And so those are the kinds of things that are going to
continue to come up and we have not reached solutions. But that
is why we do agree with GAO that we should be talking about
that out in the open and really working with the tribes to try
to develop a policy on how to deal with those.
The Chairman. Well, we really appreciate that. We look
forward to that happening.
Ms. O'Dell, in 2009, the Nation's largest investigation of
archaeological and cultural artifacts led to the arrest of
nearly two dozen individuals. Many of these individuals
desecrated American Indian burials and stole priceless
artifacts. Were these individuals prosecuted? Do we need
tougher penalties for those who desecrate and steal from sacred
sites?
Ms. O'Dell. I believe you are referring to the BLM case
down in the Four Corners area, sir. And I believe the
individuals were prosecuted, and BLM is in the process of
consultation to repatriate all of those artifacts that were
recovered in the seizure after the arrests.
The Chairman. Yes, well, thank you very much. We look
forward to continuing to work with you and to try to get some
information from you as well, as we continue our work here. And
if we need to, we will legislate some things. If not, we will
try to do it administratively. But we certainly want to resolve
some of the concerns that the native peoples have had over all
of these years.
So I thank you very much for being a part of this.
Ms. O'Dell. Thank you, Mr. Chairman. It is an honor to
administer the program with you.
The Chairman. Thank you.
I would like to invite the third panel to the witness
table. Serving on our third panel is the Honorable Mark
Macarro, chairman of the Pechanga Band of Luiseno Indians from
Temecula, California; the Honorable Mervin Wright, Vice
Chairman of the Pyramid Lake Paiute Tribe from Nixon, Nevada;
and Mr. Ted Isham, Cultural Preservation Manager and Tribal
Historical Preservation Officer at the Muscogee Creek Nation
located in Okmulgee, Oklahoma.
So I want to welcome all of you to this hearing.
Chairman Macarro, will you please proceed with your
testimony?
STATEMENT OF HON. MARK MACARRO, CHAIRMAN, PECHANGA BAND OF
LUISENO INDIANS
Mr. Macarro. Mr. Chairman and Members of the Committee,
[greeting in native language]. It is good to be here with all
of you, and good afternoon. And it is an honor to be here to
testify on this issue [phrase in native language].
First, a bit of background. The homeland of the Pechanga
people is the Pechanga Indian Reservation located near
Temecula, as you said. Our people have called the Temecula
Valley home for more than 10,000 years. We are 60 miles due
north of San Diego along Interstate 15.
Our people have named the Temecula Valley since time began
as [phrase in naive language.] It might be why it is sometimes
hard to pronounce, and we believe that the world was created in
Temecula. That is where all life began.
In 1847, 18 treaties were negotiated in sequence with
tribes throughout California, and the Treaty of Temecula was
the 17th of those treaties. There was one more after us, the
treaty I think of Santa Ysabel. In good faith, huge land
cessions were made under these treaties involving ceding most
of what we know as modern day Southern California in exchange
for a permanent inviolable homeland and the provision of goods
and services to improve health, education and welfare of my
great-grandparents.
Shortly after ceding these huge tracts of land and within
one month of arriving back in Washington, D.C., gold was
discovered in the Hills of Julian, about 40 miles away. The
timing was indeed unfortunate for all of us Indians and tribes
because the Senate, upon hearing of the gold, they chose not to
ratify these 18 treaties.
And still, surprisingly enough, our land was taken from us.
Most of the goods and services that were promised as well in
our treaty never materialized and we remained, however, on our
lands at that point in time, that legally they had begun to be
dispossessed from us.
But there is more. Twenty-six years after that treaty-
making, in 1873, sheep farmers laid claim to the land that we
managed to hang on to for about 25 years. That is where our
last aboriginal village stood. These sheep farmers obtained a
Federal court decree of ejectment from a Federal court in San
Francisco.
And on a summer day in 1875, after two years of fighting
that decree of ejectment, a posse led by the Sheriff of San
Diego County showed up and under gunpoint evicted my ancestors
from their village. And in one swell swoop, 300 elders, women,
children were loaded onto wagons with a few personal effects
and just dumped in a dry wash two miles away. Their former
homes, their orchards, their village, their crops, their
gardens were destroyed, burned, and their livestock herds,
which were numerous, were seized to pay for the court costs and
the cost of the eviction.
On June 27th, 1882, and that anniversary is coming up here,
President Chester Arthur signed the executive order that
established the Pechanga Reservation, finally a homeland for my
people.
Now, this timely oversight hearing follows the release of
two GAO reports demonstrating that Federal agencies have in
general failed to comply with NAGPRA. On behalf of the
Pechanga, we greatly appreciate your time and interest in
consideration of these issues. The Pechanga has been fortunate
to create a Cultural Resources Department dedicated to the
return and protection of our tribal ancestors and their
cultural belongings. We have actively participated on hundreds
of development projects that directly impact our invaluable and
irreplaceable Luiseno cultural resources.
Despite these remarkable advances, the Luiseno people
continue to confront daily threats to our ancestors, and it is
for this reason I come to the Committee today urging you to
strengthen NAGPRA 20 years after its passage.
The two primary issues I need to address are compliance
failures and consultation failures. We go into great detail of
these in our written testimony.
On compliance failures, the La Jolla ancestors example.
Unfortunately, the University of California example illustrates
several NAGPRA concerns. I refer you to our written testimony
for the full facts. But briefly, the University of California
San Diego has refused to repatriate the remains of ancestors to
our Kumeyaay neighbors to the south, neighbors who are
culturally affiliated. And they used science to deny oral
tradition, tribal oral tradition, and further demanding
evidence contrary to NAGPRA standards.
The matter demonstrates the following shortcomings with the
law. One, NAGPRA allows the university to set its own standards
for appointing decision-makers to address repatriation claims.
The U.C. and its campuses have a poor record of including
representatives from California's federally recognized tribes.
Unfortunately, we see that many of these NAGPRA review
committees are stacked by the institution against tribal
interests, thus assuring that our tribal ancestors and their
belongings will never return home.
The lack of guidance, standards or best practices results
in inconsistencies and ultimately wrongheaded decisions which
contravene NAGPRA's mandate. These institutions are simply
unable to self police themselves to follow the law correctly.
There is enforcement that is needed.
Two, the U.C. interprets NAGPRA's definitions in a manner
which forces tribes to provide evidence of cultural affiliation
and proof of identity of cultural items beyond the law's
evidentiary standards. The guidance in NAGPRA provides
institutions with yet another way to avoid repatriating by
concluding that items are not subject to the law or, as the
U.S. example shows, using the new culturally identifiable rule
to question the very Indian-ness of our ancestors found within
our ancestral territories or by trying to invent competing
claims where none existed before.
Certainly, Congress did not intend for these results. We
urge the Committee to provide clear guidance concerning these
local review committees and evidentiary thresholds, which
uphold the letter and spirit of NAGPRA.
I am almost done.
Consultation failures, our written comments provide several
situations. But let me just say this. The United States Marine
Corps Base Camp Pendleton is only a few miles away from our
reservation. It is squarely within the aboriginal territory of
all Luiseno people. They are our most active Federal neighbor
and they generally attempt to handle consultations responsibly.
However, we nonetheless still encounter NAGPRA compliance
issues. For example, the base holds group consultations wherein
several recognized and non-federally-recognized tribes are
invited to participate in these consultations at the same time.
This places us in a precarious position because Federal law
requires the agency to consult on an individual government to
government basis with federally recognized Indian tribes.
Two, to our dismay, federally assisted institutions have
divulged, without tribal input or consultation, very sacred and
significant Luiseno songs that were recorded by ethnographers
decades ago on aluminum discs. We believe NAGPRA's definitions
should be clarified to specifically reference objects of
cultural patrimony that are non-physical tribal properties like
tribal sacred recordings, as was the law's original intent.
These recordings are sacred, they belong to no one else, and
they are regarded as intellectual property.
So we urge the Committee to consider creating a
consultation definition with protocols and best practices that
ensure consistent and just application of the law. California
has adopted a definition under its sacred sites protection law
that includes a number of key provisions and components which
we would like to see made part of NAGPRA, including
requirements for parties to take into account tribal cultural
values and work toward mutually accepted agreements.
Finally, we ask that you consider how the U.N. Declaration
on the Rights of Indigenous Peoples would apply. And
particularly I would turn your attention to sections 11 and 12,
paragraphs two in each one of those, the implications of these
provisions on how we can all improve NAGPRA. These paragraphs
urge the redress of wrongs. They set a new framework for
looking at how indigenous peoples are dealt with in a positive
and respectful and honorable way.
We believe that by using these principles and making
changes to Federal laws like NAGPRA, perhaps also the 1989 NMAI
Act, will empower sovereign Indian governments in the proper
treatment and return of their ancestral remains and cultural
items.
In conclusion, I specifically ask that this Committee's
strongly consider our examples and our suggestions and move
forward with recommendations and amendments to NAGPRA, its
implementing regulations, and the new culturally unidentifiable
rule, as well as issuing best practice guidance. In doing so,
we believe that this Committee will further NAGPRA' initial
intent and ensure that the wrongs committed against tribal
peoples in the United States are righted.
Thank you.
[The prepared statement of Mr. Macarro follows:]
Prepared Statement of Hon. Mark Macarro, Chairman, Pechanga Band of
Luiseno Indians
Good afternoon, Chairman Akaka and distinguished members of the
Committee:
My name is Mark Macarro and I am Chairman of the Pechanga Band of
Luiseno Indians, located in Southern California. On behalf of the
Pechanga People and our ancestors, we thank you for the opportunity to
participate in this oversight hearing on achieving the policy goals of
the Native American Graves Protection and Repatriation Act (NAGPRA).
The protection and proper treatment of our ancestors and their personal
items is a responsibility the Pechanga People accepts with pride. Each
day our Tribe faces the destruction of and desecration to our cultural
resources, including human remains, and constant threats to our sacred
and cultural places.
Our People have taken steps to proactively protect these vital
components to our heritage, cultural worldview and self governance;
however, existing federal (and state) laws simply do not always provide
sufficient protection for the resources that are housed in museums and
educational facilities, as well as those items which are subject to
disturbance every day because of development, both on and off federal
lands. It is this constant struggle that we endeavor to succeed in
honor of our ancestors. We appreciate the opportunity to provide
helpful examples and suggestions for the Committee's consideration on
how we can strengthen NAGPRA to better assist all tribal peoples across
the United States in their duty to care for their ancestors and
cultural items.
I. Introduction: ``Sacred is the Duty Trusted Unto our Care and With
Honor We Rise to the Need''
For more than twenty years, the Pechanga Band of Luiseno Indians
(``Pechanga Tribe'' or ``Tribe'') has invested significant resources in
our cultural resource protection program. I am proud to say that the
result of our efforts include: a state of the art curatorial facility
that meets federal standards and which includes both tribal and non-
tribal curation staff; a full staff dedicated solely to the
identification, preservation and protection of the Tribe's invaluable
and irreplaceable resources both on and off reservation; and
technological advancement, including a full-fledged GIS department
housing our data and information concerning resources in the Tribe's
traditional territory, which often times surpasses the information and
technology of the agencies with management control over tribal
resources. In the spirit of cooperation, and in the interest of our
cultural resources, the Tribe is able to offer its resources and
expertise to assist federal, state and local agencies in identifying
and avoiding impacts to known resources and cultural sites as well as
planning for impacts to areas with the potential for unknown resources.
To further our duty to our ancestors, we have successfully developed
and implemented a professional tribal monitoring program that allows us
to have highly trained and skilled tribal representatives work side by
side with archaeologists to offer the highest protection to our
ancestor's physical and cultural remains.
However, despite the opportunity to achieve these cultural
protection milestones under NAGPRA and otherwise, the Pechanga People
still face a constant struggle to reclaim, protect and preserve our
ancestors and their cultural belongings. The legal framework available
to us is insufficient and lacking in many areas. In too many situations
NAGPRA and its counterparts do not go far enough to protect these
resources, provisions are simply implemented incorrectly, and in some
cases, ignored all together. We hope these comments and the examples we
provide below will enable the Committee to see the real world
challenges faced by the Pechanga Tribe today, as well as other tribal
nations across the United States, and will encourage your Committee to
take action to make NAGPRA work better for all Indian Peoples.
II. Issues, Real World Examples and Potential Solutions
To provide the Committee a solid understanding of the practical
issues facing the Pechanga Tribe, and many other tribes in the Nation,
with regard to NAGPRA, we provide several examples below. We hope the
Committee will find these illustrations and accompanying suggestions
helpful as the laws and policies are reviewed and changes contemplated.
a. Intentional Excavations and Inadvertent Discoveries
While the Pechanga Tribe has concerns about how NAGPRA is
implemented for those remains and items in the possession of museums
and educational facilities, we also face day to day issues with current
and future disturbance of our ancestor's final resting places and
cultural sites. NAGPRA, while focused heavily on the return of items to
tribes, also provides for the treatment and disposition of remains and
cultural items found on federal (and tribal) lands through intentional
excavations and inadvertent discoveries. Below is an example of how we
are confronted with the shortcomings of these provisions on a frequent
basis as we work closely with one of our neighboring federal agencies.
Example: The Camp Pendleton Conundrum
The Marine Corps Base Camp Pendleton (``MCBCP'' or ``Base'') is
located within the Pechanga Tribe's traditional aboriginal territory.
The Tribe works very closely with Base staff through consultation and
tribal monitoring on permitted development projects that occur within
the Base. The Tribe and the Base have programmatic agreements in place,
as well as agreements that provide for tribal monitoring to address any
cultural resources that are surveyed or uncovered. In addition, the
Base has developed on its own a protocol for handling situations
governed by NAGPRA and in recent months the Base has engaged the local
tribes in reviewing and potentially revising the protocol. However,
despite the existence of these types of agreements among Pechanga,
MCBCP and other interested Tribes who may have cultural affiliation to
the items which will or may be uncovered or excavated during a project,
the items are often not returned promptly or handled expediently.
Unfortunately, human remains and cultural items must still go through
the lengthy, cumbersome and culturally insensitive process of
``Custody'' pursuant to 10.6 of the Part 10 Regulations (43 CFR 10.6),
which process includes notice, a claims process and publication of the
details of disposition of such items, before the final disposition and/
or repatriation of the remains and/or items can be carried out.
When tribes and lineal descendents already accepted as the
affiliated tribes are involved in a permitted project taking place on
federal lands, deference should be given to the agreements between
those parties. The Pechanga Tribe has been told by the MCBCP that even
though we have agreements in place concerning treatment, disposition
and repatriation of items subject to NAGPRA, the Base is not able to
transfer custody of those items without going through the entire
Custody and Notification process in NAGPRA as those items technically
became part of federal collections. This process is both culturally
inappropriate and offensive because of the requirement to publish the
plans for proposed disposition in newspapers of general circulation and
is time consuming, costly and repetitive. The Tribe has to wait months,
sometimes much longer, before items are repatriated even though
agreements to repatriate have already been reached between the federal
agency and the Tribe.
Solution: Deference to Agreements
Since its passage, the consultation process under NAGPRA has
resulted in, for the most part, a positive relationship between the
Tribe and MCBCP, as well as other federal agencies. However, as is so
often the case with legislative attempts to ``right wrongs,'' the
application of the law in a practical and real world manner often
conflicts with how the law was originally conceived. The example above
demonstrates how the intent of NAGPRA was to not only return those
remains and cultural items to their rightful peoples, but also to
develop strong relationships among, in particular, federal agencies
through the consultation and treatment provisions of the law. However,
as we have discovered, that intent is hampered by the law itself
because even when the Tribe and federal agency can reach an agreement,
the return of items is slow and cumbersome, resulting in further
disrespect to those remains and resources and affected tribal peoples.
To address this ``conundrum'' we propose that the Intentional
Excavation and Inadvertent Discovery sections of NAGPRA be amended to
include provisions giving deference to previously reached agreements
concerning treatment and repatriation where all the relevant and
appropriate parties are involved in a permitted project. This could be
in the form of a written Plan of Action concerning the remains and
items subject to NAGPRA or other agreements that address the pertinent
issues. We believe that this will ensure that the final disposition of
items happens in a more timely and respectful manner. In addition, such
a provision will also aid in honoring the confidentiality issues
important to tribes, including details concerning the resources'
identity and disposition and in some cases, location.
Solution: A More Tribally Inclusive Approach
Because of the experiences of the Pechanga Tribe, we believe that
the NAGPRA sections covering intentional archaeological investigations
and inadvertent discoveries must encompass a more inclusive and broader
approach to the treatment of the remains and cultural items still in
their final resting places, yet facing potential or certain disturbance
and destruction by future development activities.
For example, the processes outlined in NAGPRA itself and its
implementing regulations should include actual government-to-government
consultation concerning the excavations and the potential discoveries
resulting from such proposed work. We understand that other federal
laws are designed to cover such consultation, but they fall short
because they ultimately only cover items and places that are determined
to be ``historic properties'' or ``significant'' sites or have
significance to archaeologists--classifications which are ``terms of
art'' with respect to their governing law and which classification we
note often conflicts with tribal world reviews regarding these
resources. Many of the individual items that are excavated do not meet
those narrow definitions and thus encompass a group of culturally
significant items over which some agencies argue affiliated tribes have
no control and no legal right to be included in the decisions
concerning their final treatment and disposition.
Although NAGPRA is primarily concerned with the repatriation of
existing collections housed at federally assisted institutions, it does
contain sections concerning ground-disturbing activities on federal
land and how such activities affect tribal sacred resources. NAGPRA is
intended as a human rights law to address the return and tribal control
over Indian Tribes' own cultural resources that have been taken away
from tribes through human rights violations committed against tribal
people, including inhumane treatment, grave desecration and the loss of
land through force.
Presently a gap exists in federal law which can result in tribes'
inability to control the destiny of their own cultural resources.
Pechanga has worked on numerous projects where federal law has failed
to protect the resources and further has failed to allow the Tribe's
expert opinion to play a determining role in the ultimate disposition
of the resources. In many cases, it is hard to state that the cultural
finds were ``inadvertent'' when the Tribe told the agency that the
project area held cultural significance to the Tribe even if it was not
able to pinpoint the exact location or precise nature of the resources
at the time of the project's environmental review. The Tribe's first
preference for such resources is in situ preservation instead of
excavation. Still today, twenty years after the passage of this human
rights law, many of our places are written off as ``non-significant''
and the resources are destroyed or left as orphaned collections with
cultural resource management firms or other curatorial institutions.
To address this problem, we believe NAGPRA should contain
provisions specifically calling for tribal consultation and including a
requirement of reaching treatment agreements that meet the satisfaction
of the affiliated tribes. The law should also address the ability for
tribes to set a preference that the sites and items themselves be
avoided and stay protected and preserved so that the issue of
repatriation never has to be reached. The present status of the law
seems to still encourage excavation and arguably actually forecloses
certain options for the affiliated tribes concerning final disposition
of the items. For example, the sections are written to assume that
items uncovered will be excavated and removed from the place from which
they were found. Pechanga takes great steps in always seeking to
preserve in place human remains and sacred items in addition to other
cultural resources. Unless the law requires avoidance as the preferred
alternative, we fear the continued destruction of our cultural
resources will result. We believe that NAGPRA intended to right the
wrongs of the past while also avoiding additional wrongs in the future.
Protecting these resources in situ is the best way to achieve that
morally correct goal.
As stated above, many of these individual items and sites are not
covered under other federal (or state) laws so they are left with no
protection or tribal input as to their disposition. We respectfully
suggest that NAGPRA be expanded to provide deserving protections for
sites subject to intentional excavation and inadvertent discovery on
federal lands, which would include mandatory government-to-government
consultation with encouraged outcomes, a preference for preservation
and avoidance of cultural and sacred sites, and the deference to tribes
to determine the significance and ultimate disposition of the sites and
resources.
Solution: Defining Consultation
The issue of proper consultation is not a new concern expressed by
tribal people vis-a-vis NAGPRA. In fact, speakers raised certain
consultation issues during the 2009 House hearings on NAGPRA. The issue
with proper consultation arises in many contexts under NAGPRA,
including those situations identified above and below.
While we will not endeavor to provide an exact definition of
consultation here, in our experience, certain key points regarding
consultation should be included in such a definition. For example, in
2004, California adopted a definition of consultation under a
traditional cultural places protection law (generally known as SB 18):
Consultation ``means the meaningful and timely process of seeking,
discussing and considering carefully the views of others, in a manner
that is cognizant of all parties' cultural values and, where feasible,
seeking agreement. Consultation between government agencies and Native
American tribes shall be conducted in a way that is mutually respectful
of each party's sovereignty. Consultation shall also recognize the
tribes' potential needs for confidentiality with respect to places that
have traditional tribal cultural significance.'' While not perfect,
there are several key components to this definition that we believe
provide guidance for both federal agencies and institutions subject to
NAGPRA.
The Pechanga Tribe urges the Committee to consider creating a
definition of ``consultation'' with input from both tribal governments
and federal agencies. We are confident that this will ensure strong
guidance for both parties and in turn, will serve to more effectively
and efficiently meet the intent and requirements of NAGPRA.
Further, another component to this solution is developing
consultation protocols and best practices that will assist federal
agencies in meeting their consultation duties. While some agencies may
have developed their own internal protocols, having a standard to meet
will ensure that consultation is effective across the board and vary
less from agency to agency. To borrow again from state law, the
Governor's Office in California has developed consultation guidelines
for local agencies to properly consult under SB 18 (noted above) and
have made these readily available through training sessions and posting
them on the state website. We are sure there are other workable
examples available as well, but this is one potential resource the
Committee could consider in advancing consultation protocols.
Example: Sacred to the Tribe, But Not NAGPRA
In addition to the above situation, it has been our experience with
permitted projects on federal lands outside our reservation that the
scope of items covered under the intentional excavation and inadvertent
discoveries sections of NAGPRA is too narrow. Further, the definitions
under NAGPRA are too constrained as they fail to account for some items
that are sacred to tribes, yet do not meet the stringent, narrow
definition in the law.
Shortly after NAGPRA was enacted, the Pechanga Tribe was involved
in a reservoir project where a local water district was the lead agency
and the project subject to NAGPRA. Although this area was known and
accepted to be an area where tribal cultural sites and resources
existed, not all of the areas were designated as significant sites or
historic properties under the applicable laws. As such, many of the
cultural items were not preserved and were instead excavated and
removed from the property. When the Tribe attempted to repatriate the
items, the water district refused to convey all the items to the Tribe,
even though the items were all culturally related to one another. The
district ultimately only turned over the items that it alone determined
met the definitions set forth in the NAGPRA.
This poses several concerns for the Tribe. First, the definition
and process leaves the determination of what falls under NAGPRA to
agencies and employees who are not tribal members, who often do not
have expertise in cultural resources issues and who do not, and cannot,
know the meaning, importance and sacred nature of such items to the
tribes. NAGPRA certainly attempted to incorporate tribes in many ways;
however, the real world experience of tribes under NAGPRA demonstrates
that these measures can fall short of their mark. Tribal interpretation
of their resources must be given deference over non-tribal
interpretation.
Second, the definition of ``Sacred objects'' requires that these
items have significance or function in the continued observance or
renewal of such ceremony (25 USC 3001, Section 2(3)(C)). This
threshold can be difficult to meet in California as the tribes in our
state suffered some of the greatest genocidal efforts in North America
at the hands of the federal and state governments and private citizens,
which is further evidenced by the vast number of unrecognized tribes in
the state. It is well documented that tribes were forbidden by laws,
institutions and the larger community from practicing their religion or
speaking their language for a significant length of time. As such,
tribes are only in recent years in a position to revitalize their
cultural practices and language, but sadly, many practices have been
lost. This fact does not take away the significance and sacredness of
items to the Tribe, however.
One example of items the Tribe knows to be housed in a curatorial
facility that we consider ``ceremonial'' or culturally significant, yet
which is not used today is known as fire rock. This rock is gathered
from one specific location on the MCBCP property known as Tootakut
(TOWT-ah-coot) which translates from Luiseno into English as ``rock
fire.'' The resource is only derived from this single location and is
unique because of its glowing quality. Although not everything is known
at this time about this resource, what we do know through a combination
of anthropological information as well as our place-name information is
that it was important to the ancestors and utilized in a ceremonial
nature. Because of its importance to the Tribe, we should be able to
repatriate these items; however we are precluded from doing so because
of the too narrow interpretation of ``Sacred object'' under NAGPRA.
A further concern of the Tribe is that there are a number of
cultural items that are never afforded the opportunity to be
repatriated because they do not fall within any of the five categories
under the NAGPRA. Examples of such resources would be those items used
on a day to day basis by our ancestors or items that may not have a
presently known religious, sacred or ceremonial importance. However, it
is the belief of the Pechanga People that they were once the cultural
property of tribes and tribal individuals and thus, the tribes should
be afforded the ability to repatriate these items and/or have a more
prominent role in the determination of their ultimate disposition.
Further, because these items assist the Tribe in furthering its
history and culture, we believe they are vital components to our People
and deserve the same respect as those items which carry known religious
and ceremonial significance. Additionally, this example demonstrates
how what is ``sacred'' to one tribe varies and thus, it is possible
there are over 560 tribal world views as to what is culturally
important and which should be returned to tribes. As the law exists
now, these items are left in both legal and spiritual limbo, which is
neither the culturally or ethically appropriate result.
Solution: Broadening the Definitions
As this example demonstrates, there are several issues with the
implementation of NAGPRA and how its definitions can be interpreted to
prevent repatriation of certain items that we believe should be
returned to tribes. One potential amendment we suggest is to provide
guidance on how to determine what is ``sacred,'' which for the reasons
expressed above must include tribal input.
A second revision would include changes to the definition of
``Sacred objects'' to account for the historical atrocities and trauma
suffered by the Nation's Indian Peoples, which has resulted in a
disconnection between traditional uses and contemporary tribal peoples.
We suggest revising the definition of sacred objects to include such
objects that while may not be used in the present day for whatever
reason can still be returned to the Tribes and treated properly. We
encourage the Committee to work with tribal governments to expand this
definition in a way that would accommodate this situation.
Finally, we suggest that the definition of ``cultural items'' be
expanded to include cultural resources that are not covered by other
definitions in NAGPRA. As we note above, it is the Pechanga Tribe's
belief that items not currently covered by the law may still be
important to the Tribe. These resources were the cultural property of
their ancestors. The Tribe is able to learn more and revitalize
components of their history and culture that have been diminished or
lost because of historical pressures and circumstances through the
return and study of these items. In fact, the resources expended by the
Tribe in cultural resource protection efforts have directly benefited
the Tribe in numerous ways: We have been able to expand our knowledge
of Luiseno language, history and cultural practices directly through
the study and use of these objects and we continue to benefit by virtue
of our efforts at ethnographic and other research. To deny the return
of these items because they do not fit under a narrow interpretation of
a definition contained in NAGPRA denies the tribes the right to protect
and further their histories and cultural practices.
b. Avoiding Repatriation
Unfortunately, there is a clear example in California that
highlights a plethora of issues with the implementation of NAGPRA. The
problems confronting California Tribes implicates concerns for other
tribes, including Pechanga, as the pressures for denying repatriation
by large universities (and museums) are growing and we fear could be
used for denial of future claims. In this example, there are issues
with how the term ``culturally affiliated'' is being interpreted; how
``culturally unidentifiable'' is being used to avoid return of remains
and cultural items; how science is valued more than tribal knowledge by
faculty reviewers; how the make-up of state and campus NAGPRA review
committees works to deny rightful repatriation claims by tribes; the
lack of accountability for the often deplorable treatment of ancestral
remains and associated cultural items by museums and institutions; and
the absence of standard practices regarding such treatment and chain of
custody issues.
Example: The Case of the La Jolla Ancestors
The repatriation of the ancestral human remains dug up from the
University of California, San Diego (UCSD) campus in the mid-1970s in
an archaeological excavation is an ongoing concern being actively
pursued by the Kumeyaay Nation of San Diego County, California.
Pechanga supports those efforts. The handling and treatment of those
remains by archaeologists, scientists, museums and the University of
California across 40 years, demonstrates many of the problems with how
NAGPRA is being implemented today. Meanwhile, the University of
California system continues to hold the remains and grave goods of many
tribal ancestors, including those of the Luiseno People. This must
change.
In brief summary, the Kumeyaay made a claim for these ancestors
many years ago: first by the Viejas Band of the Kumeyaay Nation around
1996 and then subsequently by the Kumeyaay Cultural Repatriation
Committee (KCRC) around 2006. The mission of the KCRC is to protect and
preserve ancestral remains, sacred lands, sacred objects and funerary
objects under NAGPRA for today and future generations. KCRC is unique
in that it is comprised of 12 Kumeyaay tribes of San Diego County:
Barona, Campo, Cuyapaipe, Inja-Cosmit, Jamul, La Posta, Manzanita, Mesa
Grande, San Pasqual, Santa Ysabel, Sycuan, and Viejas, all working
together cooperatively to achieve their goal of repatriation.
Initially, UCSD denied they even had collections that may be
subject to NAGPRA. Finally, in or around 2006, the campus realized that
it did in fact have possession of collections subject to NAGPRA,
although it was not necessarily clear where they were located, due to
the remains' undocumented chain of custody. The journey of those
remains from their final resting place to labs, museums and the
Smithsonian, then back across the country to California--some in a
Staples box, others in a Chicken Breast strip fritters box, clearly
having not been properly curated, with some shellacked, others falling
out of their un-bagged wrappings, others with fresh breaks and glued
pieces--demonstrated a failure to handle these human beings and their
belongings in a culturally appropriate manner, and which was
unacceptable and disgraceful.
Following the most recent claim by KCRC, UCSD convened a campus
NAGPRA Working Group around 2007, not having appointed one before. As a
result of this unfamiliarity and no guidelines to fall back upon,
ultimately this Working Group, which exists today with the same
composition, lacked balance: The Committee Chair is married to the
scientist who originally dug up the graves and another scientist who
participated in the original dig also sits on the Committee. No
Committee members have specialized expertise in the burial or other
cultural practices of the Kumeyaay; nor are there any tribal
representatives, despite that request having been made by the Kumeyaay.
Not surprisingly, that Working Group, stacked against repatriation
of these ancestors from the start, issued a majority report in which
they found that cultural affiliation could not be established,
essentially because the remains, dating to approximately 9,500 years
old, were ``too old'' to establish such affiliation in their view.
However, as the Group's minority report pointed out, this finding
ignored the many lines of evidence that did support a finding of
cultural affiliation, which evidence was accepted by a different UC
campus in 2001 regarding other Kumeyaay claims from the same general
area.
Unfortunately, the UC system is set up such that campus
recommendations flow to a system-wide NAGPRA Committee comprised of one
appointee from each of the campuses with collections subject to the
law. It should be noted that two Native Americans may be appointed to
this committee by the UC Office of the President from nominations made
by campuses. When the La Jolla remains were considered by this system-
wide committee in 2011 for repatriation under the new CUI rule, one
tribal member was from a non-federally recognized California tribe and
the other from a federally-recognized tribe outside of California.
Again, missing was the direct world-view and strong political voice of
knowledgeable, federally-recognized California, tribes. This begs the
question of why the committee did not seek to include members of
federally recognized tribes in California and further, whether they
made any attempt to do so.
While the recommendations from this Committee were split, the notes
from that meeting show that scientists, both within and external to the
committee, were trying to put up new obstacles to the repatriation of
these ancestors. These individuals were changing their arguments from
``they are too old'' to be Kumeyaay to ``they are too old to be Native
American.'' However, by its own actions, UCSD has treated the human
remains as Native American: UCSD submitted the human remains in its
NAGPRA inventory in 2008, submitted that inventory to the UCSD NAGPRA
Working Group, had several interactions with the NAGPRA Designated
Federal Officer and met with the Kumeyaay, all demonstrating that UCSD
continued to treat the remains as Native American. We understand no new
evidence to the contrary was provided to the committee.
It should also be noted that the UCSD property where the remains
were excavated was designated a sanctified cemetery by the state Native
American Heritage Commission in 2008 and listed on the National
Register of Historic Places under Criterion D (archaeology) in 2008 and
Criterion A (tribal values) in 2009. Moreover, subsequent research
performed on the remains by a qualified researcher of native descent
published in 2010, found evidence in the female ancestor of a tooth
with prominent shoveling, a physical trait still present in modern day
Native American populations. Further, KCRC has been recognized as the
Most Likely Descendant under California state law to repatriate more
recent bone found at the same UCSD site. The system-wide committee's
meeting notes do not indicate that it considered any of that
information when debating whether the remains should be repatriated.
Unfortunately, this situation raises more questions than answers. How
much more demonstration of cultural linkage can a tribe provide? What
is a reasonable effort to make a tribe demonstrate its cultural
affiliation? How do we balance the ``requirements'' of science and the
view of tribal peoples to come to a fair and just result? We hope that
going forward, this Committee can assist us with finding clear and
workable answers to these and many other questions raised by our
testimony.
Other arguments from scientists on the system-wide committee were
that tribes from outside the Kumeyaay aboriginal territory may want to
claim these so-called CUI remains. This argument was advanced even
though the Kumeyaay territory was recognized by the State of California
in 2002 via Assembly Joint Resolution 60, which proclaimed the
territory stretched from the Pacific Ocean into the desert and down
into Baja California, including the property at issue, and even though
no other tribe has stepped forward over all these years to make such a
claim. Why was there so much focus by elements of the committee on
cultural affiliation when the remains were being considered for
repatriation under the CUI rule? Again, this example raises concerns
with NAGPRA itself and the new CUI rule as well.
Just in the last month, the UC Office of the President, upon review
of the system-wide committee's decision, appropriately deferred to the
campus' determination regarding the remains' Native American origin and
authorized UCSD to continue to proceed under NAGPRA. If the campus
elects to continue to follow NAGPRA, the UC President further listed
certain ``directions'' and ``recommendations'' for how UCSD should
accomplish this.
The first item is for some ``expert'' to reanalyze whether the
items found in the dig and listed on the draft inventory are really
funerary objects (the Kumeyaay have consistently said they are). This
perhaps illustrates the concern the Native American Rights Fund and
others have expressed to the NPS during review of the CUI rule
regarding the section that potentially allows for the the separation of
grave goods from human remains.
The UC President's second recommendation is for the campus to
revise its NAGPRA notice of inventory completion to acknowledge that
given the old age of these remains, there is some division among
``experts'' on whether they meet the legal definition of Native
American. That this would even be proposed in handling the repatriation
under the CUI rule indicates the need for a technical fix to the NAGPRA
definition of ``Native American'' so that tribes can be assured that
scientists will not try and get a ``second bite'' at blocking
repatriation--first denying cultural affiliation, then denying their
``Indian-ness'' at all--presumably so that these ancestors can continue
to be treated as scientific property against the express legislative
intent of NAGPRA and the expressed desires of tribal communities.
The third and fourth recommendations by the UC President appear
linked: if UCSD elects to consult more broadly with tribes outside of
the aboriginal territory of the Kumeyaay, as suggested by scientists on
the system-wide committee, AND if additional tribes are determined
aboriginal to the La Jolla area, then UCSD would need to revise its
inventory and provide additional notices. If there are no competing
claims, then the campus would be authorized to dispose of them to the
Kumeyaay. This recommendation, stemming from elements of the state-wide
Working Group, to essentially re-open consultation seems to be from the
old-school playbook of trying to divide Indians in the hope that they
may fight amongst themselves and therefore make no progress either as
individual tribes or collectively. Again, this is the same theme we see
in our earlier and later examples with permitted projects and
consultation wherein too much process aimed at putting the burden on
tribes thwarts the spirit and intent of the NAGPRA.
Meanwhile, it appears that the UC scientists, still unhappy about
the original NAGPRA statute and its preponderance of the evidence
standard, and perhaps even unhappier regarding the CUI rule, are taking
their concerns to the media in a manner most offensive to tribal
peoples: labeling tribal claimants as ``lobbyists,'' calling their
religious beliefs ``myths'' and going as far as to say that in trying
to repatriate these ancestors, ``the University of California favors
the ideology of a local American Indian group over the legitimacy of
science.'' They attack UC administrators who appear to be making
legitimate efforts to finally repatriate the remains and grave goods
under the new rule, including one administrator who was recently
awarded the National Medal of Science by President Obama, in prominent
publications such as Science. They essentially assert that the only
legitimate way to place a claim under NAGPRA is by biological evidence,
meaning, submitting the ancestor and the claimant to DNA analysis, what
to them appears to be the only form of acceptable proof, of
``scientific certainty''--a standard that was expressly rejected in the
promulgation NAGPRA. Efforts to avoid repatriation have gotten out of
control in California and we urge the Committee to help ensure that
such efforts stop.
The degree of resistance to repatriation in some parts of the UC
system is high, as demonstrated by the vocal opposition by certain
faculty, many of whom have documented personal and professional
conflicts of interest, but this only proves what tribes already knew:
the need for a strong NAGPRA continues to be great. The need to make
technical revisions to NAGPRA at its twenty year anniversary, to ensure
that its original intent is being implemented in the field, also
appears necessary.
Solutions: Clarifications, Revisions and Adopting New Provisions
To fix the issues outlined in the testimony and examples above, we
respectfully recommend your Committee discuss the following
improvements to NAGPRA and its implementation:
Clarifying ``Native American'' under NAGPRA: Making a
technical amendment to the definition of ``Native American'' in
NAGPRA, such as the ``or was'' fix (``''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'') so that the letter of
the law and spirit of NAGPRA regarding cultural affiliation can
be more fully achieved.
Amend Culturally Unidentifiable Rule: Revision of section
10.11(c)(4) of the 2010 NAGPRA CUI final rule that may allow
for the separation of burial goods from human remains thereby
allowing the holding repositories to keep these objects as
their property. To allow these items to be separated from the
ancestral remains is a spiritual violation of the highest order
and should not be allowed.
Adopting Best Practices for Review Committees: The review of
best practices for the population and operation of state and
institutional NAGPRA review committees: If such formal
committees are warranted, mandate parity and accommodation of
the world view of knowledgeable tribal people, and meaningful
penalties, such as the retraction of federal funding if the
institutions are out of compliance. It is likely these
committees are going to be in the spotlight more and more given
the new CUI rule and that little guidance currently exists.
This oversight hearing is an excellent opportunity to begin
considering how we can strengthen NAGPRA and revise the CUI
rule as needed.
In addition, mandatory inclusion of Native Americans on these
review committees should be explored. Preferably, these should
include a tribal person from a tribe located in the region of
the claimant tribe when possible. This will ensure that the
tribal world view is given parity with that of the scientific
perspective. We urge the Committee to consider adopting such
requirements as part of the best practices for these review
committees.
Protection of Tribal Sacred Places: As has been discussed so
often, we encourage the Committee to consider the possibility
of Congress creating a cause of action to protect tribal sacred
places, many of those which include items and places of
cultural patrimony (such as Origin Areas), burials, grave goods
and ceremonial items. Unless tribes can sustain lawsuits, it is
unlikely that they can achieve a truly meaningful seat at
federal, state and local negotiation tables. Moreover, if
tribes are unable to save sites in the field, it only furthers
the cycle of wrongs leading to laws like NAGPRA and creates
additional repatriation issues, as discussed above.
Adopting Treatment Standards and Accountability Provisions:
This example, and the others we touched on above, demonstrates
the often deplorable conditions in which our tribal ancestors
are kept by some Universities and curatorial facilities. Our
ancestors deserve to be treated respectfully and with dignity
until they are returned to their rightful tribal groups and
laid to final rest once again. In addition to the best practice
standards identified for the review committees, we urge the
Committee to also consider adopting standards for the treatment
of remains and cultural items still in the possession of these
institutions, in consultation with tribes and other affected
parties.
c. Cultural Patrimony
Objects of cultural patrimony, which NAGPRA defines as objects that
have ``ongoing historical, traditional, or cultural importance central
to'' tribal groups is another area of the law which we urge the
Committee to review. As the example below demonstrates, what should be
considered cultural patrimony is changing as technology advances.
Example: The Collision of Law and Intellectual Property
Recently the Pechanga Tribe became aware that Luiseno traditional
tribal songs held in a collection at the National Anthropology Archives
Holding (``NAA''), an arm of the Smithsonian, were going to be
digitized and made available to the public in this format. These songs
were originally recorded as part of a project organized by the American
Bureau of Ethnology wherein a federal government agency employed
various anthropologists and ethnologists, including John P. Harrington
(which focused on southern California) to document and record aspects
of tribal culture throughout the United States. Pechanga did not learn
of this action to digitize its ceremonial songs through an official
communication by the federal institution. While the Tribe appreciates
the transition and updating of certain data to current technological
preferences, digitizing these songs without proper processes in place
regarding the confidentiality and use of the songs violates the
sanctity of tribal cultural property.
Eventually, Pechanga was asked regarding our preferences for the
treatment of these important resources by the NAA, but only because the
Tribe proactively sent in written correspondence regarding our
concerns. It was conveyed to the NAA that the Tribe's position is that
none of the songs should be digitized or distributed to the public
because they concerned death and burial, but in particular there were
three (3) songs that were highly private in nature because they
concerned very sacred practices. Ultimately, the NAA decided to go
ahead and digitize all of the songs into an MP3 format except those
three (3) that we identified as being particularly sensitive--a result
the Tribe considers to fall short of culturally appropriate treatment
for these items of Cultural Patrimony.
This is not a situation that is or will be unique to Pechanga. The
project conducted by the American Bureau of Ethnology focused on tribes
in various areas of North America and there are recordings concerning
the culture of various tribes throughout the country in the holdings
and presently available on the website database or through a public
records request. It is our understanding that many tribal songs are
available in a digital MP3 format, which can either be readily
downloaded from a website or which can be sent to a requesting party
for a fee. To our knowledge all of these actions were taken without
appropriate consultation with the tribes to which this cultural
property belongs.
Solution: Contemporizing the Law
This situation exemplifies the necessity to clarify the current law
with regard to ``Items of Cultural Patrimony'' as defined in NAGPRA to
include not only physical objects, but also intellectual property like
that described above. This is a critical point, as it often is the case
that it is the song, belief or use of the item itself, and not
necessarily its tangibility, that makes the object sacred. In addition,
in the case of the Pechanga example, it seems as though these songs may
not only be Items of Cultural Patrimony, but also Associated Funerary
Objects. Thorough government-to-government consultation concerning the
nature of such intellectual property and repatriation of such items
should be required under NAGPRA. When these songs were recorded by
professional such as Harrington it was never the intent of the
informants that they would be widely distributed for unknown uses. Many
of these pieces of cultural property were held in private collections
and only inadvertently were transferred to these public federal
institutions subjecting them to categorization as public property. This
is another serious gap in the law concerning tribal authority over
their cultural properties and must be remedied as technology is quickly
changing and these private and very culturally sensitive items are now
more at risk of abuse and confidentiality violations.
d. Complaint Process and Resources Issues
While the Pechanga Tribe has not itself faced issues with the
complaint process and how it is implemented, we are aware that there
are simply too few resources to adequately address complaints coming
before the National Review Committee. This is particularly daunting
when we consider the kinds of cases that the Committee may be
reviewing. Using the La Jolla example above under item (b), it is clear
that these cases are very complex, with large amounts of documentation
and varying forms of evidence. We understand that there is only one
person to review all complaints regarding NAGPRA violations and that
there is currently a backlog of such complaints. We respectfully
suggest that the Committee seek information on how many complaints are
outstanding, the length of time it takes to review and assess
complaints and determine how many more resources (financial and
personnel) are needed to ensure complaints are adequately reviewed and
timely resolved.
An additional concern is that the Review Committee only hears
disputes at its quarterly meetings, which means that tribes have to
wait months to have their matters addressed. In particularly complex
cases, this could span over several meetings to ensure that tribes are
able to present the Review Committee with all the available evidence.
This further stalls the repatriation process and prevents our tribal
ancestors and their belongings from appropriate and respectful
treatment.
In addition to assessing the state of the complaint process and the
needs of the staff in resolving timely complaints involving compliance
under NAGPRA, we further suggest that the Committee consider reviewing
the National Review Committee's needs. The information gathered will
enable the Committee to have a solid understanding of the current needs
and concerns not only of the tribes, but also of the Review Committee
and associated staff.
As all of the examples we provide herein demonstrate, working
together to accomplish the goals of NAGPRA is an essential component to
successful repatriation, treatment and consultation. The first step in
this process is determining the needs of all parties and we believe the
assessments suggested here will be a great stepping stone to bring us
closer to achieving the policy goals of the law.
e. Regional and Local Museum Compliance
Much of the focus on NAGPRA has involved compliance and
repatriation issues with larger museums and educational facilities.
Yet, there is another set of museums, and potentially smaller
educational facilities that are subject to NAGPRA yet have little or no
funding to complete inventories and/or repatriate items to the
culturally affiliated tribe. To compound this problem further, these
smaller institutions are simply so understaffed and underfunded that
they do not even have the resources to apply for grants to administer
NAGPRA. As such, tribes are unaware (and in many cases, the facility
itself may not even be aware) of what is in the collections of smaller
museums that may be subject to NAGPRA's repatriation provisions.
In our experience, this means that our ancestors and their
belongings are still sitting, forgotten, in boxes, on shelves and are
subject to continued disrespect and ill treatment. The end result is
that either these items will never be returned to their proper place or
tribes themselves must expend significant resources to discover these
collections, often catalogue and inventory them themselves and at their
own expense and initiate the return of these items to a place of final
rest and respect. Below is an example the Pechanga Tribe experienced
recently and would like to share with the Committee to illustrate this
real and largely invisible problem.
Example: The ``Lost'' Collections
In February and March of 2008, staff from the Pechanga Cultural
Resources Department visited a local county museum to view the
``Temeku'' collection that was excavated in the early 1950s. This
collection relates to one of the most significant cultural places of
our Tribe, a village area on the National Register of Historic Places
since 1973, and a part of the Luiseno Ancestral Origin Landscape. Staff
confirmed that this particular museum did receive some federal grant
money and as such, was subject to the provisions of NAGPRA. Sadly, our
staff discovered that the collection had never been catalogued since
the excavation, some nearly 60 years later.
At the time our staff visited the museum, the collection was stored
in 16 archival boxes that were packed solid to the brim. In addition,
there were also some larger loose pieces that were stacked haphazardly
on some shelves. When our staff began looking through the archival
boxes, they found that the contents of all of the bags excavated from
the unit levels had never been separated into their appropriate
assemblages, i.e., lithics, pottery, and bone. Pechanga staff
identified several pieces of what very likely appeared to be cremated
human bones, that were mixed with lithics and other materials. Our
staff completed a preliminary catalog at that time, which consisted of
1,122 bags of single and mixed artifacts.
In February of 2010, tribal staff returned to the museum in order
to do a comprehensive inventory and to separate the unit/level bags
into their proper assemblages. This was completed in June 2010 with the
help of four interns from a local college. It is important to note that
the Tribe, at its own expense and utilizing its own over-extended
resources assisted the museum in this regard even though this
responsibility mandated by federal law falls on the museum. When the
inventory was completed, there were a total of 6,644 artifact bags
containing either single artifacts or multiple artifacts of the same
assemblages from the same unit/level.
The curator of the museum's anthropology department was grateful to
have the Tribe complete the inventory and sorting of the artifacts as
they have always lacked the staff and funding to complete those tasks,
even though required by NAGPRA. Further, because the staff had not been
able to complete an inventory, they were unaware that they had human
remains in the collection.
We further discovered that this particular museum has nearly 150
collections from Luiseno sites in Riverside County that have never been
catalogued. Over the next few years, the Tribe intends to work on
inventorying and cataloguing these collections as well. Unfortunately,
most of these collections are located in an offsite warehouse without
any kind of climate control, which further endangers the human remains
and cultural items in the possession of the museum.
This is only one example, and the Tribe has grievous concerns that
many more situations like this exist across the Nation. This threatens
both the policy and intent of NAGPRA as small institutions do not even
have the resources to apply for federal monies to complete inventories
under NAGPRA. Which in turn results in either the remains of our
ancestors and their belongings sitting in boxes, on shelves, in rooms
lacking proper climate control continues the disrespectful treatment of
these human beings. Testimony given before the House in 2009 by Brenda
Shemayme Edwards, Chairwoman of the Caddo Nation of Oklahoma, reminded
us all that these are not objects. These are people, human beings,
deserving of respect and dignity. Sadly, under the current federal
scheme, many of our ancestors are invisible and may never be returned
home for proper treatment and back to a final resting place, which all
of us deserve as a fundamental human right.
Solution: Increased Funding and Access to Funding
While NAGPRA does provide funding for museums to complete
inventories of their collections, the above example demonstrates how
difficult it can be for small, underfunded museums to actually comply
with the law. The first step to addressing this problem (which the
Tribe suspects is a prevalent one) is to identify those museums who
fall under NAGPRA and who have not completed inventories. Certainly, if
an institution received federal funds there should be a record of that
and these facilities can be identified through auditing those records.
Once smaller institutions are identified, additional technical
assistance should be provided so that staff can submit grant requests.
This will assist these facilities in retaining additional staff to
catalog and inventory collections that presently sit unknown, in boxes
and sometimes under terrible conditions and can then ultimately be
returned to their people and a final place of rest. Without additional
funding, these ancestors and cultural items will remain lost, or as the
case with Pechanga, tribes will have to expend their own limited
resources to fulfill the duties of the institution and remedy a problem
that is not of our creation. We do not believe either result comports
with the spirit, intent and policy of NAGPRA.
f. Unrecognized Tribes and NAGPRA
Federal laws such as NAGPRA that offer protections to the Nation's
Indian Tribes do so because of the unique government to government
relationship that exists between Tribes and the federal government.
Pechanga intimately understands the plight of the many unrecognized
tribes across the United States, especially because of the historical
situation in California described earlier in this testimony.
Unfortunately, the Tribe has at times found itself in the uncomfortable
position of being placed in the middle of the distinctive challenges in
which non-federally recognized tribes find themselves with respect to
NAGPRA.
We understand that the National NAGPRA Review Committee has
determined that in some instances, the involvement of unrecognized
tribes may provide additional information not otherwise available to
the Committee. Further, the Committee has determined that in some
situations, repatriation of human remains and cultural items may be
effected to such tribes. In fact, unrecognized tribes are occasionally
listed on the Federal Register notice for the completion of an
inventory and may submit claims for repatriation of items.
Additionally, we have encountered federal agencies inviting
unrecognized tribes to participate in consultation on projects and
instances were inadvertent finds of human remains have occurred. While
alone not problematic, the inclusion of such groups poses unique
challenges to the recognized tribes that are rarely discussed.
With respect to repatriation, we have not yet faced a situation
where the Tribe sought the return of human remains and cultural items
and were confronted with a competing claim by an unrecognized tribe.
However, we see that this could be an obstacle, particularly in
California where there are over 50 unrecognized tribes. It is unclear
how the National NAGPRA Review Committee would handle a situation where
there were such competing claims because their discretion to involve
unrecognized tribes is not governed by the statute or its regulations.
As such, if the Review Committee intends to continue efforts to involve
and repatriate to such tribes, there needs to be some governing process
that would address competing claims from recognized tribes.
Furthermore, Pechanga has been requested on numerous occasions by
non-recognized tribes, institutions and agencies to facilitate or
``sponsor'' repatriation of collections that are either culturally
affiliated with a non-recognized tribe or categorized as culturally
unidentifiable. This puts the Tribe in an awkward position of
responsibility that is unreasonable--spiritually, culturally and
politically. Although the Tribe has the resources and expertise to
assist in this regard--which is why we have been called upon to do so--
the Tribe cannot validate or take a position on the cultural
affiliation or existence of a non-recognized tribe. These sorts of
requests and situations have vast implications beyond the repatriation
effort at hand and can be used for purposes other than the protection
of human remains and cultural items under NAGPRA.
Although Pechanga does not want to see any cultural resources left
orphaned and un-repatriated, we are of the position that it was never
the intent of this federal law to place additional burdens on
recognized tribes because of the problem of unrecognized tribes created
by the Federal Government. We often find ourselves in uninvited
situations which force us, a federally recognized tribe, to take
positions with great political repercussions and further potentially
causing great divide in our tribal communities, both recognized and
not. We should not be asked to make determinations as to the validity
or the ability of a non-recognized tribe to handle such repatriation or
cultural resources management issues, but unfortunately this gap in the
law has resulted in just that situation.
One issue the Tribe was recently confronted with involves the
inclusion of unrecognized tribes in consultation processes with federal
agencies and their participation in monitoring and the treatment of
remains and cultural items discovered through intentional excavation
and inadvertent discoveries. In recent months, it has become known to
Pechanga that projects on MCBCP have included participation by
unrecognized Tribes, to the exclusion of Pechanga and other federally
recognized tribes whose ancestral territory encompasses the Base.
This poses several issues, one being that group consultation is
generally not considered government-to-government consultation and
violates not only NAGPRA, but other federal laws such as the National
Historic Preservation Act. The second issue these ``group''
consultations create is that the information we share is not
confidential and so the Tribe has to choose whether to offer the
information we have in this setting, or expend further resources to
attend another individual meeting with appropriate staff. Fortunately,
MCBCP has been willing to also meet with Pechanga tribal
representatives on an individual basis in addition to the group
consultation, but the Base is nevertheless still conducting the
``group'' consultations. We note as well that in our experience, other
state and local agencies conduct similar consultations, which raises
the same implications.
Secondly, as you are aware, NAGPRA requires the agency to consult
with federally recognized tribes who are or may be culturally
affiliated to the remains and items. The inclusion of non-recognized
tribes during these consultations necessarily forces the recognized
tribes to work with and validate or invalidate and oppose the positions
of non-recognized tribal groups. The non-recognized tribes are allowed
to offer treatment and disposition preferences that may or may not be
congruent with those of the federally recognized tribes. Again, this
situation places federally recognized tribes in the position of either
having to forgo their own treatment preferences in favor of those made
by non-recognized tribes and/or potentially pitting tribes against one
another. Neither outcome is fair for the tribes and certainly creates
difficulties for federal agencies responsible for completing
consultation and determining the treatment and disposition of remains
and cultural items.
As mentioned above, a further consideration is that, unfortunately,
given their status as non-recognized tribes, it is unclear whether such
tribes have the resources and infrastructure in place to repatriate and
act as caretaker for these items. This is illustrated by the requests
from such groups for Pechanga to act as an ``umbrella'' or facilitator
for repatriation efforts.
Further complicating this landscape is that the Pechanga Tribe has
been asked by federal agencies to ``umbrella'' or support unrecognized
tribes in monitoring efforts. Unfortunately, the Tribe was asked to do
this during a group consultation in front of other recognized and
unrecognized tribes. This request places the Tribe in a very awkward
position and because of the Tribe's sovereign status, we do not believe
the request should have been made by the agency. Again, while we
understand that federal agencies wish to include these groups because
they may have information, we believe that consultation with federal
agencies should be between individual recognized tribes and that
agency. This issue points to another reason why a definition of
consultation and guidelines would be helpful to agencies who find
themselves in a region where both recognized and non-recognized tribes
are located.
Again, it is unjust for a law that is supposed to be aimed at
upholding basic human and tribal rights to force tribes into a
situation where they are potentially pitted against one another and ask
them to assume unrequested responsibilities which can implicate a
tribe's cultural and political positions. Moreover, recognized tribes
should not be put in a position of commenting on and/or validating a
non-recognized tribe's political situation as a tribal entity.
Solution: Defining Consultation
As these issues demonstrate, the Committee should embark on
specifically defining Indian tribes so that it is clear which tribes
can participate and how they will participate without forcing tribes to
become involved in the political and private business of other tribes.
Another suggestion to addressing this issue would be to add in a
definition of ``consultation'' to NAGPRA and its governing regulations.
We respectfully refer the Committee to the consultation suggestion
under item (a), above. We believe that adopting a definition of
consultation and preparing guidelines or protocols will help alleviate
concerns regarding proper and meaningful consultation between tribal
governments and federal agencies and institutions subject to NAGPRA.
III. Implications of the United Nations Declaration on the Rights of
Indigenous Peoples on NAGPRA
In addition to the concerns expressed by the Pechanga Tribe in this
testimony, we further see that issues arising under NAGPRA implicate
the United Nation's Declaration on the Rights of Indigenous Peoples.
Because the United States has announced its support for the
Declaration, and earlier this month this Committee considered the
domestic implications of the declaration on the rights of indigenous
peoples, this is a timely consideration for the Committee. NAGPRA has
always been considered human rights legislation and in turn, is
certainly legislation which intended to protect the rights of tribal
peoples in the United States with regard to the return and treatment of
their ancestors and cultural resources.
Of particular relevancy are Articles 11 and 12 of the Declaration.
Specifically:
Article 11:
1. Indigenous peoples have the right to practise and
revitalize their cultural traditions and customs. This includes
the right to maintain, protect and develop the past, present
and future manifestations of their cultures, such as
archaeological and historical sites, artefacts, designs,
ceremonies, technologies and visual and performing arts and
literature.
2. States shall provide redress through effective mechanisms,
which may include restitution, developed in conjunction with
indigenous peoples, with respect to their cultural,
intellectual, religious and spiritual property taken without
their free, prior and informed consent or in violation of their
laws, traditions and customs.
Article 12:
1. Indigenous peoples have the right to manifest, practise,
develop and teach their spiritual and religious traditions,
customs and ceremonies; the right to maintain, protect, and
have access in privacy to their religious and cultural sites;
the right to the use and control of their ceremonial objects;
and the right to the repatriation of their human remains.
2. States shall seek to enable the access and/or repatriation
of ceremonial objects and human remains in their possession
through fair, transparent and effective mechanisms developed in
conjunction with indigenous peoples concerned.
These provisions implicate many of the issues raised in our
testimony, as well as testimony provided by others to the House during
the 2009 hearings. In addition to the suggestions we have provided on
how to begin remedying the gaps and shortcomings of NAGPRA, we urge the
Committee to think about how clarifications, revisions, amendments and
implementing regulations can be drafted to not only address concerns
raised by tribes, but to also acknowledge these provisions of the
Declaration. In so doing, we believe that the Committee will find a
respectful and culturally sensitive balance that weighs the interests
of all parties that work together on a daily basis to affect the policy
goals, intent and letter of NAGPRA.
IV. CONCLUSION
Chairman and members of this Committee, on behalf of the Pechanga
People, we extend our appreciation for this opportunity to testify on
achieving the policy goals of NAGPRA. Respecting and protecting our
tribal ancestors, their grave goods and final place of rest is so
important to all of Indian Country. We support NAGPRA, and also support
strengthening NAGPRA, so it can better meet the needs of all Tribal
People. In addition, as the recent GAO report indicates, repatriation
efforts at the Smithsonian raise many of the same implications and
issues presented in our testimony regarding NAGPRA. We urge the
Committee to also consider fixes for the repatriation process under the
NMAI Act of 1989.
In addition to the concerns we have expressed above, the Pechanga
Tribe, based on its own experience in trying to protect the Luiseno
Ancestral Origin Landscape from Granite Construction's proposed Liberty
Quarry, and from its conversations with so many other Tribal Leaders
across California and elsewhere, respectfully urges this Committee to
hold Oversight Hearings on the protection of Tribal Sacred Places at
its earliest opportunity. There is much unfinished business and a real
sense of urgency to preserve what remains of our sacred areas for Our
People.
I am happy to answer any questions whenever the time is
appropriate. Thank you.
The Chairman. Thank you, Mr. Macarro.
Mr. Wright, will you please proceed with your testimony?
STATEMENT OF HON. MERVIN WRIGHT, JR., VICE CHAIRMAN, PYRAMID
LAKE PAIUTE TRIBE
Mr. Wright. Thank you, Mr. Chairman.
First, I would like to thank the Committee for inviting
each of us here to testify, all to discuss how NAGPRA ought to
be interpreted to protect cultural rights. Second, I will
highlight a few things gone wrong with implementing NAGPRA. And
third, I will point out three key issues to correct the
problems with implementing NAGPRA.
Congress intended actual repatriation as the foundation of
the law as it recognizes and respects the sanctity of burial
practices of native societies and people. To evaluate the
statute is to take into account the values, cultural societies,
and to accept the responsibility to respect our ancestral past.
NAGPRA is one of the very few Federal laws that
affirmatively protects native culture, tradition and practices,
and is one of only two repatriation laws that respects our
traditional practices governing life passages.
NAGPRA was intended for equal protection for native peoples
and to make a place at the decision table for native peoples.
Native people are human beings with human rights, including the
right to be buried and to stay buried. NAGPRA recognizes that
right.
Traditional burials or funerals are communal and maintains
principles to honorable memorialize and respect the lives of
individuals. This is the foundation for sacredness that
connects the land to native peoples and to our relatives. The
ability to connect common traditional principles to the
philosophical network of a legal bureaucracy rests upon
officials that can digest the tenets of tribal and Federal
laws.
The failure of museums and agencies to comply with NAGPRA
demonstrates that noncompliance is not a priority of the
Federal Government. The merits of consultation have not
provided meaningful exchange resulting in mutual decisions for
parties to experience equal satisfaction.
This is a disconnected attribute creating the disguise of
impossibility for successful repatriation. The lack of action
is present because authorities that govern specific
responsibility condone noncompliance. At one point, the NAGPRA
Office was going to promulgate a rule that all culturally
unidentified human remains were the property of the holding
repositories. Although the NAGPRA law has a place for oral
traditions, the bureaucracy has convoluted the procedures to
involve so much unsupported hypothesis that the term becomes a
complicated network of reality in the minds of Federal
officials.
Theories are tested by experiment, while traditional
insights are concluded by experience. No deceased person or no
one who was responsible for burial rites in the early stages of
this Country has ever given consent to disturb and desecrate
burials with the purpose of permanent removal. Tribal nations
have relied upon oral traditions as it is real to acknowledge
our existence today.
The trace steps back in time are supported by the cultural
continuity since time immemorial. There is a small, but
powerful group of non-native scientists who are trying to prove
that non-natives were here before native people and our
ancestors and lands are really theirs. That wrongheaded notion
is behind the current effort to hold onto what could be their
evidence.
Nature and the exact science of our age is more about the
method of questioning. What is not known will be phrased in a
question so eloquent that it will become conclusive. The term
culturally unidentified is a problematic situation.
Unfortunately, the interim rule issued on March 15, 2010 fails
to accomplish the goal of Native American repatriation.
The traditional burial is inclusive of everything in the
funerary process, as well as everything in the ground or in
caves or on scaffolds at the site. The Department of Interior
conducted horse trading with the rule. In the end, the tribes
could receive the human remains, while the museums keep the
funerary objects which they can sell, trade, or deal away
irrespective of the policy goals of repatriation laws.
It creates a public policy that grave robbing of objects is
acceptable. It conflicts with longstanding principles of
property law. It suggests there is a different right of
possession for objects and the people that were unearthed
together.
The Native American definition is also troublesome. The
definitional term is interpreted to mean that anything older
than 1776 is not Native American. The policy of NAGPRA for
native peoples is inclusive for timeframes prior to 1776. Our
history becomes pre-history and pre-Columbian.
The technical amendment to the law was proposed in the past
only to be held up by previous Administrations in three
sessions of Congress. The Administration has not expressed
opposition, but has yet to release its position on the
technical amendment. It is reasonable, logical and rational. I
urge the Committee to ask the Administration's view on the
technical amendment and to get past the stalemate.
Native peoples are the only peoples in the United States
that do not have a door to the courthouse to protect our sacred
sites. The United States must ensure that all people, including
native peoples, are treated equally under its laws and enact a
statute creating a right of action for Native Americans to
protect our sacred places.
The United States is being asked to assist and support
American citizens seeking equal protection and fair application
of its laws. We do not understand why we are being denied.
Together, we can move forward in a right direction if we keep
our eyes on the policy goals.
Thank you.
[The prepared statement of Mr. Wright follows:]
Prepared Statement of Hon. Mervin Wright, Jr., Vice Chairman, Pyramid
Lake Paiute Tribe
The Chairman. Thank you very much, Mr. Wright, for your
testimony.
Mr. Isham, will you please proceed with your testimony?
STATEMENT OF TED ISHAM, CULTURAL PRESERVATION
MANAGER/TRIBAL HISTORICAL PRESERVATION OFFICER, MUSCOGEE
(CREEK) NATION
Mr. Isham. Thank you.
[Greeting in native language]. I am Ted Isham, Wind Clan of
the Hillabee Canadian Ceremonial Grounds. I am a citizen of the
Muscogee Creek Nation and also work for the tribe. As you
mentioned, I am the THPO for the tribe. I was a previous
curator of our tribal museum, the Creek Council House Museum.
And I am also the language instructor for Oklahoma State
University there.
I bring greetings to you from our leaders [greeting in
native language]. And I thank you for this opportunity to
discuss repatriation and cultural preservation issues.
[Phrase in native language] I ask at this time that my
written statement be entered into the record.
The Chairman. It will be included.
Mr. Isham. My testimony focuses today on Public Law 101-
601, the Native American Graves Protection and Repatriation
Act, and Public Law 101 185, the National Museum of the
American Indian Act, which includes repatriation provisions for
the entire Smithsonian Institutions.
The Muscogee Creek Nation believes that the Native American
Graves and Repatriation Act, NAGPRA, was and is designed as a
Native American human rights law, an effort to right an
inherently wrong, basic wrong. NAGPRA was enacted in response
to accounts that spanned many generations. These accounts
document a spectrum of actions from harvesting of human remains
to disinterments and theft of Native American human remains,
funerary objects, sacred objects, and objects of cultural
patrimony that belong to a collective native community that
includes families, clans, societies, longhouses, ceremonial
grounds and other moieties.
The current reality of repatriation in America is that
native nations carry almost the full burden of proof in making
claims of repatriation with Federal agencies and with the
Smithsonian Institution. This was not the intent of either
Federal law. The basic premise that surrounds the repatriation
process is the concept of meaningful consultation. This concept
is not being embraced, much less practiced in a uniform manner,
by Federal agencies, museums and educational institutions in
the realm of repatriating our Native American ancestors and
cultural objects.
This remains a stumbling block to the achievement of the
goals of NAGPRA. I have two examples of this, and one is with
the Tennessee Valley Authority, which has been mentioned in the
GAO report. They have had a history of lack of tribal
consultation and no cultural affiliations of some of their
collections. As a result, they have 8,368 culturally
unidentified human remains in their collections, and this
listing was done without tribal consultation, adding to decades
of this process of the repatriation.
And the second one I want to mention is the Sam Noble
Museum in Oklahoma, with their withdrawal of cultural
affiliation status without tribal consultation of 3,889 human
remains, also adding decades to the process of repatriating
those.
Today, there is an extraordinary hardship put upon Indian
nations because of how NAGPRA has been implemented by non-
native people. Additionally, the lack of funding, staffing and
specific Western and museum expertise further exacerbates the
situation and put Indian Country further behind. The sheer
number alone of Native American ancestor remains that have been
disturbed must be addressed.
The GAO report states that it may take several decades for
the Smithsonian to complete their work. And it also appears
that repatriation using NAGPRA may take possibly hundreds of
years to work through this process unless changes are made to
the implementation.
What has gone wrong? Why is this taking so long? In looking
at these charts, you will see that after 20 years of
implementing the Act using NAGPRA process, 180,168 Native
Americans have been identified by museums and Federal agencies
in their collections. Unfortunately, one-quarter of this
amount, approximately 53,843 have been culturally affiliated.
The remaining 126,325 Native Americans remain in Federal museum
repositories and are now referred to as culturally
unidentifiable. The common term is CUI.
Because these Native Americans have been given this
designation, the burden is now on the native tribes and Native
Hawaiian organizations to conduct the research as to possible
affiliation and then submit a request for all information on
that entry and then to start that repatriation process.
In looking at the chart that demonstrates the Smithsonian,
the second chart that we have, we see that there is
approximately the same amount of affiliated remains, about one-
quarter of all Native American remains that have been
culturally affiliated, and the repatriation process at the
Smithsonian is the same as has been noted above. For a tribe to
research and request more information about the culturally
unidentifiable is an extensive and lengthy process. The burden
is on the tribes to conduct this research and request process,
and most simply do not have the resources to do this important
work.
In terms of solutions, the Muscogee Creek Nation and 12
other federally recognized Indian tribes that have combined
membership of over 1 million tribal members deliberated in
October 2010 and developed the resolution. After receiving the
GAO report, NAGPRA, after almost 20 years, that no enforcement
mechanisms exists to ensure NAGPRA compliance by Federal
agencies. The full resolution is included in my testimony.
We urge that the Congress review our recommendations and
work with us to remove the challenges and barriers of the
repatriation process.
In terms of the GAO's report, I will officially request
that also Congress ask the GAO to finish their repatriation
investigations by reviewing the museums also.
I would like to thank the other 117 THPOs, Tribal Historic
Preservation Officers, for their work and dedication. And I
would also like to thank the National Association of Tribal
Historical Preservation for all their hard work and support in
this area.
In closing, Lisa Larue from the United Keetowah Band of
Cherokees in Oklahoma recently said these words at a recent
gathering in Norman, Oklahoma, ``It is a shame that some of our
ancestors have been in boxes and on shelves for a longer time
than they have walked on this Earth.''
I would be happy to answer any questions that you have.
Thank you. [phrase in native language].
[The prepared statement of Mr. Isham follows:]
Prepared Statement of Ted Isham, Cultural Preservation Manager/Tribal
Historical Preservation Officer, Muscogee (Creek) Nation
I am Ted Isham of the Wind Clan and of the Hillabee Canadian
Ceremonial Grounds, Muscogee (Creek) Nation citizen and live in
Okmulgee, Oklahoma and I also work for the Muscogee (Creek) Nation. My
title is Manager of the Cultural Preservation Office and Tribal
Historic Preservation Officer (THPO). My previous job was Curator of
the Creek Council House Museum in Oklahoma so I am very familiar with
museum practices. I am also the language instructor of Muscogee at the
Oklahoma State University.
I bring you greetings from our Nation's leaders.
The Muscogee (Creek) Nation believes that the Native American
Graves Protection and Repatriation Act (NAGPRA), enacted in 1990, was
and is designed as a Native American human rights law--an effort to
right an inherently basic wrong. 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 and theft of Native American Human Remains, Funerary
Objects interred with the deceased at burial, Sacred Objects of
different types, and objects of Cultural Patrimony that belong to the
collective Native community--families, clans, societies, longhouses,
ceremonial grounds and other moieties. 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 (NAGPRA), enacted November 16, 1990).
Public Law 101-185, the National Museum of the American
Indian Act that includes repatriation provisions for the entire
Smithsonian Institution, enacted November 28, 1989; amended
1996.
A basic universal human right is to express and carry out self-hood
as deemed appropriate by the people themselves. The policy goal of
NAGPRA is to treat our people as human beings with inalienable rights,
rather than as archeological resources of the Federal government and
private academics. In death, our ancestors were sent on a journey that
has no boundaries of time and the disruption of that journey has no
concept in our minds, beliefs, and culture, the same as if your
relatives are buried today, the expectation is that their journey will
not be interrupted.
NAGPRA was intended to stop and provide a remedy for the disruption
of Ancestral Remains. We find the implementation of the law has many
areas of conflict with the policy goals, such as ideas of ``control''
and ``ownership'' of human remains; problems with funding to get the
job accomplished; and new objectionable actions on top of the egregious
actions that the law was intended to remedy.
The intent of the law is clear--to respect and recognize Native
rights, histories, traditions, cultural context and voice--and there
are a great many people who abide by the intent of the law. There are
others who are scofflaws and who are trying to dehumanize us again in
the way that they choose to ignore this important federal Indian law.
Some repositories and scientists seem to view their collecting
interests as trumping the moral and ethical interests that made NAGPRA
such a far-reaching landmark federal policy. We still battle to help
our Ancestors find their way home and we ask you for your continued
support help us implement the law as it was envisioned. The Muscogee
(Creek) Nation is grateful for the opportunity to come here today to
bring these points to your attention.
NAGPRA is intended to alleviate situations brought on by the
European and Euro-American tradition of collecting the ``other.'' The
current reality of repatriation in America is that the Native nations
carry almost the full burden of proof in making claims of repatriation
with Federal agencies and with the Smithsonian Institution. This was
not the intent of NAGPRA and I don't believe that this was the intent
of Congress with the Smithsonian. This places an extraordinary hardship
on many nations due to lack of funding, staffing, and expertise, among
other reasons. The sheer number of ancestral remains that have been
disturbed must be addressed. The Government Accountability Office (GAO)
states that it may take several decades for the Smithsonian to complete
their work (GAO-11-515). It also appears that repatriations using
NAGPRA may take possibly hundreds of years to work through the process
unless changes are made to the implementation of the act.
Federal Agency Example of How NAGPRA is not Meeting its Congressional
Mandate
With the release of the GAO report on the federal agencies'
compliance with the NAGPRA law, NAGPRA--After Almost Twenty Years, Key
Federal Agencies Still Have Not Fully Complied with the Act (GAO-10-
768), one of the largest holders of Human Remains and Associated
Funerary Objects, the Tennessee Valley Authority (TVA), is just now
coming to realize that it, too, must consult in earnest with the tribes
after ignoring this responsibility for the past 20 years. The vast
majority of the collection that the TVA has accumulated comes from the
southeastern United States, the original homelands of our Muscogee
(Creek) Nation and related peoples. The TVA has classified almost all
of the 8,368 Native American remains in its control as unaffiliated,
without conducting proper tribal consultation to reach that decision.
The Muscogee (Creek) Nation is one of the Indigenous peoples who lived
in the region for at least 1,000 years, according to oral tradition and
physical evidence. The likelihood that these Native American human
remains and associated funerary objects can be culturally affiliated to
our tribe is very high. The proclivity of the TVA to utilize
archaeologists who seemingly make cultural affiliations or un-
affiliations without tribal consultation as required by law makes the
repatriation process very difficult for the tribes to complete.
The Tennessee Valley Authority (TVA) manages 293,000 acres and
11,000 miles of public shoreline in the Tennessee Valley. According to
the agency Website, TVA Cultural Resources staff consult regularly with
18 federally recognized tribes. No Notices of Inventory Completion and
no Notices of Intended Disposition have been submitted to the National
NAGPRA office to date. A minimum of 8,368 Native American human remains
and 20,870 affiliated funerary objects are curated at various museums,
including the Alabama State Museum of Natural History, University of
Alabama, and at the Frank H. McClung Museum, and the University of
Tennessee-Knoxville. Other repositories have not been identified.
Relied on repositories to compile and submit inventory and summary
documents. TVA relied on its own records and those of its repositories
to identify the locations of its archeological collections. TVA
generally relied on repositories in possession of its collections to
compile the agency's summaries and inventories. The repositories
prepared these documents more than 10 years ago. For TVA's collections
at the University of Alabama, TVA has not conducted specific
consultations on cultural affiliations. As a result, TVA considers its
inventories to be preliminary since the required consultations have not
yet occurred.
Lacks compliance data and faces other challenges. According to
TVA's NAGPRA coordinator, a database of TVA's NAGPRA collections is
being developed. TVA cultural resources management staff stated that
due to gaps in communications, a lack of consultations, and other
challenges, TVA has not been able to establish final cultural
affiliations for any of the NAGPRA items in its historical collections.
In addition, for NAGPRA items that were excavated during the course of
TVA projects several decades ago, some ambiguity may exist as to which
entity--TVA or the museum that curates the items--has legal control
over the items, according to TVA.
Museum Example of How NAGPRA is not Meeting its Congressional
Mandate
All museums and Federal agencies were required to complete
inventories of Native American human remains and associated funerary
objects in their collections by November 16, 1995, and notify all
culturally affiliated Indian tribes and Native Hawaiian organizations
by May 16, 1996. A copy of each notification was to be sent to the
National Park Service, which was to publish the notice in the Federal
Register. The repatriation process cannot move forward without
publication of the notice. In 1996, the Sam Noble Oklahoma Museum of
Natural History in Norman submitted its notices and several were
published. However, the remaining notices--accounting for the remains
of 3,889 Native American individuals and 18,296 associated funerary
objects--were withdrawn from the publication process on November 8,
2007, by a decision made by the National Park Service and the Sam Noble
Museum. The affiliated Indian tribes were not consulted on this
decision and these 3,889 Native Americans are not only no longer
``affiliated,'' they are no longer on any list and in fact have
``disappeared.'' These Native American ancestors remain on the museum's
shelves, unable to proceed on their journey until the museum and the
National Park Service publish the required notifications in the Federal
Register or at the least, they classify them as culturally
unidentifiable.
The basic premise that surrounds the repatriation process is the
concept of meaningful consultation. We believe that even with President
Obama's November 2009 direction for each agency to engage in meaningful
tribal consultation, this concept is not being embraced, much less
practiced in a uniform manner by federal agencies, museums and
educational institutions in the realm of repatriating our Native
American ancestors and cultural objects. This remains a stumbling block
to the achievement of the goals of NAGPRA. We are not at the table at
the important decisionmaking stages and we need to be included. The
federal and federally-assisted entities do not have the historical,
traditional knowledge that we have, no matter how much they think they
know about us. We are the only ones who can represent our interests and
those of our relatives. The TVA, other Federal agencies, and museums
discount our oral history and our traditions, as well as our cultural,
historical, linguistic, geographical and other ways that we are related
to and affiliated with other Native nations, tribes, tribal towns,
confederacies and peoples. Even when they are aware of this unique
knowledge, we are still excluded from important parts of the processes
affecting NAGPRA and as a result, our voices are not heard. As a
result, over 126,000 of our Ancestors are being described as culturally
unidentifiable and are being held like prisoners of war, locked away in
universities, agencies, historical societies and other repositories,
and federal monies assist them in this warehousing of Human Remains.
This is the opposite of the policy goal of NAGPRA.
The National NAGPRA Program office and others claim that there is
no clear direction for who is in ``control'' of the Human Remains and
Associated Funerary Objects that were disturbed and ``collected'' by
actions of TVA and other agencies and repositories. The entity that is
curating and completing the collection work makes its own case for
claiming ``control'' of Human Remains and Associated Funerary Objects.
This reverses the NAGPRA policy goal and is best seen in the recent
federal rule that separates the Associated Funerary Objects from the
Human Remains and ``gives'' the Associated Funerary Objects to the
holding repositories, thus stealing from the deceased Native people
once again. The Associated Funerary Objects belong to our Ancestors and
Relatives. They are not the property of the federal government. The
federal agencies do not have the right to ``give'' them to another
entity. The repositories do not have the right to accept the Associated
Funerary Objects or to keep them or to study them or to deal them away
to others. Just because the repositories robbed graves or paid the
grave robbers or received the grave robbers' contraband through third
or fourth parties, the repositories have no clean title or claim to the
treasures of our Ancestors and Relatives.
Administrative Remedy
The policy goal of NAGPRA is that the Associated Funerary Objects
would be returned to their respective Native American communities. We
ask the Committee to urge the Administration to amend the rule on
culturally unidentified Human Remains issued on March 15, 2010, so that
the Human Remains are repatriated with their Associated Funerary
Objects subject to repatriation processes. (Attached is the National
Congress of American Indians resolution of November 2010, Opposition to
the New Rule on Funerary Objects Associated with Culturally
Unidentified Human Remains, which we endorse.) To be perfectly clear,
we oppose the rule to the extent that it does not mandate the return of
our Associated Funerary Objects. We want any and all implementation of
section 10.11 (c) (4) of the rule to cease, and for that portion of the
rule to be revised. The Associated Funerary Objects are the primary
means of identifying the unidentified Human Remains--and the policy
goal of that section of NAGPRA is to identify what the repositories
claim as unidentifiable Human Remains. We are deeply concerned that the
Associate Funerary Objects will be further separated from the Human
Remains, making their identification even more difficult, if not
impossible. Revision of the rule on Associated Funerary Objects would
be consistent with the NAGPRA policy. The Administration claims that
Congress did not make its intentions clear and that it cannot act
without further guidance from Congress. We believe that Congress made
itself clear in setting the NAGPRA policy goals, that the Department of
the Interior through the National NAGPRA Program office substituted its
judgment for that of Congress and that the Administration can revise
the rule now and does not need to wait for Congress.
The lack of a publicly available and agreed upon tribal
consultation policy and protocol for repatriation purposes remains a
stumbling block to the achievement of the goals of NAGPRA. Consultation
is a bedrock of the repatriation process and there needs to be
consultation guidelines for the full range of Native cultural rights.
Consultation with full participation of the tribes at all levels of the
notification process is the only way to insure success of the
repatriation.
Legislative Remedy
A technical clarification is needed in the legal definition of
``Native American'' by enacting the ``or was'' amendment that the
Committee has recommended several times. Without the regulatory change
and the technical amendment, we are impeded in our efforts to conduct
repatriations and the institutions will continue to hold and ``study''
our Ancestors and Associated Funerary Objects. This and other such
blocking mechanisms make it very difficult for any tribe to complete
the NAGPRA process. Attached are two resolutions of the National
Congress of American Indians, which address these issues.
Recommended Solutions for Federal Agency Compliance with NAGPRA
In October 2010 and in preparation for the 20th anniversary of the
signing of the NAGPRA, the Oklahoma Coalition of Tribes (OCoT), a newly
formed organization of tribes representing one million Native Americans
primarily from Oklahoma, developed and issued a resolution for
Secretary of Interior Ken Salazar that lists the shortcoming of NAGPRA
and recommends how to improve the process. The following resolution was
also delivered to the National NAGPR Review Committee in November 2010.
Resolution of a Coalition of Authorized Representatives of Oklahoma and
Southern Indian Tribes on the 20Th Anniversary of the Native American
Graves Protection and Repatriation Act
WHEREAS: In recognition of the 20th anniversary of the signing of
the Native American Graves Protection and Repatriation Act, authorized
representatives from the federally recognized Choctaw Nation of
Oklahoma, Chickasaw Nation, Caddo Nation, Osage Nation, Seminole Nation
of Oklahoma, United Keetoowah Band of Cherokee Indians in Oklahoma,
Quapaw Tribe of Oklahoma, Jena Band of Choctaw Indians, Kaw Nation,
Absentee Shawnee, Sac and Fox Nation, and Muscogee (Creek) Nation, and
the Citizen Band of Potawatomi Indians, representing over 1,000,000
tribal members, met in Durant, Oklahoma, on October 26-27, 2010, to
discuss NAGPRA; and
WHEREAS: The authorized tribal representatives submit this
resolution to the Secretary of the Interior; and
WHEREAS: As experienced by the above Indian tribes and documented
in the recent Government Accountability Office (GAO) report, NAGPRA--
After Almost Twenty Years, Key Federal Agencies Still Have Not Fully
Complied with the Act, no enforcement mechanism exists to ensure NAGPRA
compliance by federal agencies; and
WHEREAS: As experienced by the above Indian tribes and documented
in the recent GAO report, federal agency representatives report that
NAGPRA is a low priority within their agency; and
WHEREAS: As documented in the recent GAO report, the National
NAGPRA Program has not effectively carried out its responsibilities;
and
WHEREAS: As experienced by the above Indian tribes and documented
in the recent GAO report, key federal agencies are still out of
compliance with NAGPRA and have not published Notices of Inventory
Completion in the Federal Register; and
WHEREAS: As documented in the recent GAO report, a lack of
transparency and objectivity exists in the actions of the National
NAGPRA Program and the Review Committee; and
WHEREAS: As experienced by the above Indian tribes and documented
in the recent GAO report, civil penalty allegations against museums
have increased dramatically over the past three years; and
WHEREAS: At the current rate of the NAGPRA process it will require
some Indian tribes (e.g. Caddo Nation) more than a century to
repatriate their known culturally affiliated human remains, associated
funerary objects, sacred objects, and items of cultural patrimony; and
WHEREAS: According to the National Park Service's online databases,
the number of currently reported Culturally Unidentifiable Human
Remains and Associated Funerary Objects is approximately four times
more than the number of currently reported Culturally Affiliated Human
Remains and Associated Funerary Objects; and
WHEREAS: The above Indian tribes agree that the NAGPRA and
repatriation processes are unacceptably slow and burdensome in their
present form.
THEREFORE: The respective federally recognized Indian tribes listed
above request the following steps to improve the NAGPRA process:
A) An ombudsman be appointed to work with the Indian tribes and
federal agencies to facilitate timely NAGPRA compliance and
that four full-time NAGPRA investigators be employed within the
Department of the Interior to ensure that museums,
universities, and institutions that receive federal funds
comply with NAGPRA; and
B) Seek to improve NAGPRA compliance by increasing the civil
penalty amounts; and
C) Federal agencies, in consultation with Indian tribes, shall
locate and secure reburial sites on federally protected land to
be used by Indian tribes for the reburial of human remains and
objects repatriated through the NAGPRA process; and
D) NAGPRA Grants shall support projects that involve
consultation with museums, universities, and institutions that
receive federal funds and hold federal collections; and
E) Indian tribes be provided with a copy of information that
federal agencies submit to the National Park Service for
inclusion in the Culturally Unidentifiable Native American
Inventory Database, thus creating a process for directly
sharing information with Indian tribes; and
F) Develop a NAGPRA tribal consultation policy for sharing
information among Indian tribes, federal agencies, museums,
universities, and institutions that receive federal funds that
would include, but is not limited to, NAGPRA Inventories,
Summaries, archaeological reports, and other relevant data; and
G) The Department of Interior shall promulgate the remaining
reserved section(s) of the NAGPRA regulations; and
H) Support NAGPRA at the level of at least $1 million for
NAGPRA administration, and $4 million exclusively for the
NAGPRA grants to Indian tribes and museums; and
I) Federal agencies, museums, and institutions that receive
federal funds shall participate in an annual consultation
meeting with Indian tribes for the purpose of discussing
policy-making, priority-setting, funding resources, and NAGPRA
compliance, to be held in Oklahoma, the home of 39 federally
recognized Indian tribes
One of the tribal members of OCoT, Ms. Lisa Larue from the United
Keetowah Band of Cherokees, recently said these words at one of recent
gatherings in Norman, Oklahoma, ``It is a shame that some of our
ancestors have been in boxes and on shelves for a longer time than they
have walked on this earth.'' The message we want to send about not
returning our ancestors to their spiritual journeys is a moral one. We
urge that the Congress review our resolution's recommendations and work
with us to remove the challenges and barriers to the repatriation
process.
Cultural Preservation at the Muscogee (Creek) Nation
In addition to my repatriation duties, I am also the newly
designated Tribal Historic Preservation Officer (THPO) for our tribe.
The Muscogee (Creek) Nation is the 113th Indian tribe to acquire Sec.
101(d)(2) status as a THPO. The THPO program is in a funding crisis
because the amount of federal funds for the program is not keeping pace
with the number of tribes entering into the program.
The Muscogee (Creek) Nation's Office of Cultural Preservation had
the honor and privilege to assist our sister tribe, the Choctaw Nation
of Oklahoma, with its own efforts of repatriation by working together
to assist in the return 124 Ancestors. The Choctaw Nation, as the lead
tribe, in consultation with other related tribes and the NPS Natchez
Trace National Parkway, completed the repatriation process and reburial
of the ancestors to allow for the continuation of their journeys to the
other world. As the related tribes all acknowledge, there is no
ceremony for the reburials but for protection of self, one was agreed
upon. This ceremony was not intended for the reburial process but for
protection of the workers who handle the remains, dig the graves and
walk on the burial ground, much as we have funeral ceremonies in modern
times. It was the intertribal collaboration that allowed the use of
each of our combined traditions to ``invent'' new ceremony, to show
respect for our relatives. It did not matter that the Human Remains and
Associated Funerary Objects belonged to the Natchez people, we as
related tribes, had all come to the agreement to allow one of the
related tribes, in this case the Choctaw Nation, to make the claim and
repatriate. It is important that a related nation return an Ancestor to
his or her cultural context--in our case, to the earth in a respectful
way. As with all our ceremonies, repatriations are private matters and
no one outside of our traditions need to know the details of what we
do. This is the case for our religions, cultures and ways of life, just
as it is for non-Natives' most personal and private family matters.
To allow Ancestors to find their way home allows us today to Find
Our Way Home.
Mr. Chairman and Members of the Committee, allow us to find our way
home.
This is a responsibility that we choose--to have our select few
NAGPRA Warriors take care of our ancestors' remains in the attempt to
rectify an injustice that has been perpetuated on the Native Peoples of
the Americas. Please remove the barriers that stand in the way of
fulfilling our responsibilities.
We urge you to act upon our requests and the attached resolutions,
in order to keep repatriation on its intended policy course and to
return the federal agencies' implementation of NAGPRA to the positive
policy goals of our human rights law.
Attachments
The Chairman. Thank you very much, Mr. Isham. And so I have
some questions for the three of you.
Mr. Macarro, in regards to NAGPRA, how much credibility is
traditional tribal knowledge given in comparison to science?
Mr. Macarro. Well, I think there is some, but in many ways
it seems like NAGPRA sets up a fight between science and
traditional knowledge. What is unfolding right now with what I
referenced, the University of California San Diego battle with
the Kumeyaay people and the tribal nations down there I think
kind of exemplifies that.
I don't know if anybody else refers to this as the New La
Jolla man, but they are really old bones, tens of thousands of
years. The discovery of those bones happened I think when they
were building the Chancellor's residence there. And the
discovery of those bones occurred before NAGPRA.
And so the disposition of those bones has been in dispute.
And adjacent to that location where those bones were found.
Other bones were found more recently, in the last few years.
Those bone were repatriated to one of the Kumeyaay tribes, no
problem, no questions, done.
The odd thing is that the same people that are arguing
about the initial bones of antiquity, saying those need to be
repatriated, too, those are the ones that had the other bones
repatriated. So the only thing that is different is the
discovery of these before NAGPRA came into existence.
And that is where these committees and these archaeologists
are saying these bones are so old we don't know who they be
yours, so we are going to hang onto them and there is no
Federal law compelling us to hand them over to you.
So never mind that there has been plenty of traditional
knowledge and history applied to the situation. And we felt it
was important in our testimony to highlight this because this
is indicative, we think, of situations throughout with the
University of California and the thousands of human remains
that they retain.
And that argument is an insidious one. These bones predate
you as Indian people on this continent. That flies in the face
of the core of our being. We know who we are. We know how we
were created. We know where we are from. And science isn't
going to tell us that that is not true. Yet science is saying
that.
And so using the application of this culturally
identifiable rule allows them to say, okay, these don't belong
to you. They are so old we don't know who they belong to.
Therefore, they do not have to be repatriated and we can hang
onto them generation after generation because somebody might
want to study them in 150 years.
The Chairman. Thank you.
Mr. Wright, your testimony highlighted issues arising from
the term culturally unidentifiable that directly impacted your
people. What can Congress do to remedy this situation?
Mr. Wright. It needs to reverse the rule. As you can see,
this chart shows or the chart previously showed 126,000 human
remains are classified or categorized as culturally
unidentified.
When we first started raising a question about this term
back in 1998, it was reported that there were approximately
87,000 of these collections were categorized as culturally
unidentified. Well, you can see that that number has almost
doubled, and it will continue to increase, as we see it,
because what is not known is what drives science is the
intriguing value that is applied with the technology, with the
ability to ask the question to the point where it is
intelligence.
And so the more questions that are being asked, the higher
the intelligence is being raised with regard to scientific
theory. And so eventually, we don't see an end with the
questioning because they don't know. And as Mr. Macarro has
indicated, all of these things that we know are in place, just
as the 9,000-year-old collection out in the State of Nevada was
known as the Spirit Cave collection. All of those items, the
rabbit-skin blankets, the netting, the bark clothing, all of
those things were used when John Fremont discovered Pyramid
Lake back in 1844.
So cultural continuity is what we call it, and that is what
takes us back to the beginning of time. However, those things
are being discounted by science, and I don't understand the
disconnection between what they are terming culturally
unidentified or culturally unidentifiable to what we try to
express in regard to our oral histories.
The Chairman. Thank you, Mr. Wright.
Mr. Isham, the GAO has confirmed twice already that two
Federal laws enacted for the benefit of Native American lineal
descendants and communities are not working. What resources are
available or what should be available to assist tribes during
the repatriation process?
Mr. Isham. Thank you, Senator. The GAO reports that talk
about those shortcomings for identifying the lineal descendancy
and those 10 points of cultural affiliation should be realized
that they are based on what is called the preponderance of the
evidence. And when you stack those up and include things such
as oral tradition, linguistic history, and what the people say,
again, that is oral tradition, then those should have a larger
weight in this, but they are treated as equal at this point.
But we think implementation of it has not been treated
equally and more evidence, more of the restriction is placed on
the actual written history, so to speak. And of course, we all
know as native people and oral traditions, much of who we are
that we know, of where we come from, is part of the oral
tradition. And we know that we have been in these places for
thousands of years.
And so those sorts of things have not been addressed and
put as equal status.
The Chairman. Thank you.
Mr. Macarro, in your testimony, you encourage the Committee
to protect tribal sacred places. Can we do so by amending
existing laws? Or would new legislation be required?
Mr. Macarro. Well, if this is a wish list kind of question,
it would be probably new laws. But I don't know how this is
going to be done because there are competing world views here
that are in play.
One of the fundamental problems is that so many of our
sacred sites are off our reservations. They are off tribal
lands, strictly speaking or legally speaking. We are fighting a
proposed aggregate mine that would destroy part of our creation
story just 650 yards off of our western boundary. And it is a
mix of State land. It is a mix of privately held land. And this
aggregate mine which may or may not be necessary would be there
for 75 years.
And in the end, it will come down to a political decision
of a board of supervisors. And so it is a matter of persuasion.
There is no law compelling them to vote for it or vote against
it. And we hope, in the end, that the public health reasons
alone will cause them to vote against it.
But you have private property proponents who say, well, you
can't tell somebody what to do on their land. And of course, we
like that argument when it is applied to us, certainly. So we
understand that. But nonetheless, desecration or destruction of
our sacred sites off-reservation, just because it is on
somebody's private land, doesn't make it right. It is immoral.
And I will continue to tell anybody that that is immoral.
There is nothing right about destroying a sacred site just
because you own it and you pay taxes on it. It doesn't make it
right.
There should be some law in place that prevents those kind
of destructions of sacred sites. In Southern California, many
of our sacred sites happen to be hills, knolls or mountains,
and they happen to be good sources of aggregate rock product,
decomposed granite and things like that that people need to
build roads or concrete for housing and curbing and the entire
fueling of the housing industry, the construction industry
comes from the things they destroy.
So it is a conundrum. It is a tough one, but I don't know
what the solution is, if there is a solution in law or if it is
just people come to some conclusion. One day they wake up and
say, okay, we need to stop doing this. But it is wrong and it
is immoral and maybe here in the United States we need laws to
prevent people from doing wrong things.
So I think both is probably the answer, fundamentally. We
need to look at existing laws and tweak those where necessary
to accomplish the goals that we can. And if there isn't an
existing law that would accomplish those goals, then a new one
needs to be drafted. I think NAGPRA is probably a good goal. It
went where no law went before in its goals and its loftiness
and that kind of broad-based, long-term thinking I think should
be engaged in as well again.
Thank you.
The Chairman. Thank you very much.
Mr. Wright, can you elaborate on how native peoples are
barred from bringing suit to protect sacred sites and why that
barrier does not exist for non-natives in the United States?
Mr. Wright. I think for the most part it has to do with the
Federal Government's intention to fund projects. It is also
involving the Federal process to evaluate impacts, be it
environmental; whether a private property owner or a State may
initiate a process for constructing a project. And I am saying
this in light of project development because it is usually
those actions that impact sacred sites. And when those things
happen, we are not given the opportunity to file for
injunctions, have any ability to legally protect what we
believe as sacred.
Normally, what happens is we will be involved with a
scoping process and an environmental review process to the
point where we can express our concern about a site, but in
return in response to the statements made to protect those
sites, it is normally mitigated to the point where there will
be minimal impacts, but we can never get to the point where
there are zero impacts.
And at times, we are reliant on bringing other
organizations into a process of disputes on behalf of tribes
because a lot of times, as was said earlier, these sites exist
within our aboriginal territory, but not within a reservation
boundary or ceded lands.
And so a lot of times we have to go outside of the bounds,
even to the point of trying to argue that we have a legitimate
claim to these sites. Albeit the Indian Claims Commission map
is always brought out and laid across the table to indicate
that maybe we don't have a right because this line is drawn on
the map saying it is outside of the boundaries of your
territory.
Again, the legalities of regulatory criteria and regulatory
compliance tends to restrict the ability to maneuver legally
into a court system.
The Chairman. Well, thank you very much, Mr. Wright.
Mr. Isham, in order to achieve the goals of NAGPRA, and I
am asking for your opinion.
Mr. Isham. Okay.
The Chairman. In your opinion, do you think amendments are
necessary?
Mr. Isham. Yes. I get confused on the law side of this. I
am used to working in the actual trenches of doing this work.
And yes, we are in favor of amendments to the law to help fix
some things that are a problem with us.
And one of the problems that we have is the definition
between is and was in the law. Again, it relates to some of
these ideas of antiquity and what is Native American and or
what was Native American, and those legislative and
administrative fixes that would help alleviate some of those
things.
The Chairman. Well, thank you. I think you know that it was
in the 109th Congress that an amendment was proposed to
redefine the definition of Native American in NAGPRA. And that
amendment, however, was not passed. I thank you for mentioning
that. Maybe we should go back and visit that again.
I want to tell you and tell this third panel as well, thank
you very much for your opinions and your responses, because
this will help us try to put things together as we move to
improve the system. And you can tell what I am trying to do is
reach out to the tribes to find out your thoughts on the
matter, rather than us looking at it from this side and saying,
well, I think this is what they need.
So we have to work together on this, and we would really
appreciate your genuine feelings about this, so we can try to
improve it. If we need amendments, okay, we try to do it.
My feeling has always been legislation should be the last
thing we should do. If we can do it administratively or policy-
wise, that will benefit the people.
But anyway, before we get to that point, we want to hear
from you on what do you think, and this is what this hearing is
all about.
So I really appreciate you all taking your time to come and
meet with us and informing us of how you feel about this.
So it is important to remember that how we treat the dead
speaks volumes about how we value living.
And I want to thank our witnesses again for participating
in today's hearing. We want to work with you as this Committee
considers amendments to NAGPRA and the NMAI Act as well. Your
thoughtful input will help this Committee work to make sure
that the road home (and for me when you say home, wow, coming
from Hawaii, home means a lot, and for all of you, too,
wherever you are. It has a deep meaning).
So the road home is a timely journey, one that brings peace
to the families and communities who live long for the dignity
of their relations and life ways to be respected.
And so we look forward to our working together to bring
some of these about to improve the quality of life for the
indigenous peoples of the United States of America.
So the record will be open for two weeks. And again,
mahalo, thank you very much for all of you, besides our
witnesses, for coming and your interest in this area that this
hearing is about.
The hearing is adjourned.
[Whereupon, at 4:25 p.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of Clyde W. Namu`o, Chief Executive Officer, Office
of Hawaiian Affairs
Dear Mr. Chairman, Vice-Chairman and Members of the Committee:
My name is Clyde W. Namu`o, Chief Executive Officer of the Office
of Hawaiian Affairs (OHA), a quasi-independent state agency,
established under the constitution and laws of the state of Hawai`i.
\1\ The statutory mandates for OHA include the following requirements:
``[t]o advise and inform federal, state, and county officials about
native Hawaiian and Hawaiian programs, and coordinate federal, state,
and county activities relating to native Hawaiians and Hawaiians'' \2\
and ``[a]ssessing the policies and practices of other agencies
impacting on native Hawaiians and Hawaiians, and conducting advocacy
efforts for native Hawaiians and Hawaiians.'' \3\ OHA is one of two
organizations specifically cited as examples of Native Hawaiian
Organizations (NHOs) within the Native American Graves Protection and
Repatriation Act (NAGPRA). \4\
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\1\ Haw. Const. art. XII, 5, Haw. Rev. Stat. 10-1 to -16.
\2\ Haw. Rev. Stat 10-6(a)(4).
\3\ Id. 10-3(4).
\4\ 104 STAT. 3049(11)(C).
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Since its enactment in 1990, the NAGPRA has provided a process
which has successfully repatriated ancestral remains and cultural
objects to claimants for an appropriate final disposition. As the
Office of Hawaiian Affairs (OHA) works to fulfill our statutory
mandates to advocate for the Hawaiian people, we are honored to
participate in the NAGPRA process by engaging in collaborative efforts
which support lineal descendants and other NHOs to ensure our cherished
iwi kupuna (ancestral remains) and cultural objects are treated with
the utmost respect.
In Hawai`i cases where lineal descendants cannot be ascertained,
the NAGPRA allows for a broad range of NHOs, including individual
family units to request repatriation. This proactive effort to be
inclusive has resulted in some conflict as NHOs which meet the general
requirements of the NAGPRA are put on the same level as those with
demonstrated familial connections to or expertise in the care of iwi
kupuna or cultural objects. In certain cases there are fundamental
conflicts between NHOs and federal agencies and institutions then
encounter difficulties in determining which NHO has the closest
cultural affiliation and repatriation is subsequently delayed. The
Hawaiian community recognizes the results and impacts the external
appearance of conflict has on the repatriation process and we are
currently engaged in initial discussions which seek to foster broader
internal agreement and understanding to ensure appropriate claimants
step forward to request repatriation and fulfill familial or
traditional responsibilities.
The State of Hawai`i has established island burial councils
(councils) in order to implement state laws which determine the
appropriate treatment of ancestral remains and associated burial goods
which are under state jurisdiction. \5\ The membership of each council
includes representatives of each geographic region of an island who are
selected from the Hawaiian community because of their demonstrated
understanding and knowledge of the traditions, culture, customs and
burial beliefs of our people. Councils participate in the NAGPRA
process as NHO who give voice to individuals and families who are
recognized as lineal or cultural descendants pursuant to Hawai`i state
law. \6\
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\5\ Haw. Rev. Stat. 6E-43 to -43.6.
\6\ Haw. Adm. Rules 13-300-35.
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In certain cases, OHA has engaged in discussions with other NHOs
which have resulted in agreement that all involved would move forward
with a ``joint request'' for repatriation. To be clear, these are
specific cases where there is no conflict between those involved and
the commitment to work collaboratively to complete repatriation has
been clearly expressed to the appropriate agency or institution. A
``joint request'' is primarily based on recognition that all involved
have some level of responsibility to see the repatriation completed
successfully. Thus, no NHO can be seen, nor does any NHO want to be
viewed as the ``most appropriate claimant''. Unfortunately, a federal
agency or institution may view a ``joint request'' as a competing claim
pursuant to the NAGPRA \7\, resulting in the ancestral remains or
cultural objects being retained until this apparent ``dispute'' is
resolved. It is our hope that some federal guidance on the difference
between a competing claim which does involve fundamental conflicts and
disputes between NHOs and a ``joint request'' which is an expressed
commitment between NHOs to work collaboratively can be developed in the
future.
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\7\ 25 USC 3005(e).
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The NAGPRA has been referenced during international repatriation
efforts with institutions and agencies within countries which do not
have laws that require the repatriation of ancestral remains and
cultural items in their collections. OHA believes that the fact that
the NAGPRA exists and has been successfully applied and completed in
the United States of America has positively impacted international
repatriation efforts and resulted in iwi kupuna and cultural objects
being returned home to Hawai'i from abroad.
OHA believes that the NAGPRA process is of extreme importance to
Native Hawaiians. Repatriation efforts can be complex and OHA is
committed to encouraging and supporting the effective participation of
Hawaiian communities, families and individuals in developing a
framework which will build on the lessons of the past and guide the
efforts of current and future generations to ensure that NAGPRA
achieves the goals of its policies and provides an appropriate and
respectful final disposition for our iwi kupuna and cultural objects.
I appreciate the opportunity to provide testimony on this very
important issue to our Hawaiian people.
______
Prepared Statement of Elizabeth S. Merritt, Deputy General Counsel,
National Trust for Historic Preservation
Dear Senator Akaka:
The National Trust for Historic Preservation appreciates the
opportunity to submit comments on the Native American Graves Protection
and Repatriation Act (NAGPRA), Pub. L. No. 101-601, 25 U.S.C. 3001 et
seq., as a follow-up to the oversight hearing held by the Committee on
June 16, 2011.
I. Interests of the National Trust
The National Trust has a long-standing interest in the preservation
of our nation's irreplaceable cultural resources. Congress chartered
the National Trust for Historic Preservation in 1949 as a private
nonprofit organization to ``facilitate public participation'' in
historic preservation, and to further the purposes of federal historic
preservation laws. 16 U.S.C. 461, 468. With the continued support
of almost 200,000 members nationwide, the National Trust has been
involved in helping federal, state, and local agencies to effectively
address and resolve issues affecting cultural resources for more than
60 years. In addition, the Chairman of the National Trust has been
designated by Congress as a member of the Advisory Council on Historic
Preservation, which is responsible for assisting other federal agencies
in complying with Section 106 of the National Historic Preservation
Act. See id. 470i(a)(8), 470s.
The National Trust has been actively involved for decades in
efforts to protect cultural resources and traditional cultural
properties. Many of our constituents are tribes and individuals
involved in the repatriation of Native American human remains and
cultural objects. The National Trust is particularly concerned about
repatriation and the protection of burial sites given the prevalence of
looting and vandalism that occurs on public lands and within
traditional cultural properties.
These and a variety of other threats facing traditional cultural
properties have often placed some of the nation's most critical sites
on our annual list of America's 11 Most Endangered Historic Places,
based on nominations from tribal members. Most recently, we included
Bear Butte in South Dakota and the Greater Chaco Landscape in New
Mexico on our just-announced 2011 List of America's Most Endangered
Historic Places, as well as Pgat in Guam, which was listed in
2010, and Mount Taylor in New Mexico, which was listed in 2009.
The National Trust respectfully requests that you and the Committee
consider the following recommendations:
II. Culturally Unidentifiable Human Remains and Associated Funerary
Objects
In March 2010, regulations on ``culturally unidentifiable human
remains'' were issued by the Department of the Interior. However, the
regulations did not require the repatriation of funerary objects
together with the human remains with which they were associated. The
Department of the Interior's policy was based on an interpretation of
NAGPRA which assumes that the Department does not have the legal
authority to require this.
During the June 16, 2011 oversight hearing, the Honorable Mervin
Wright, Vice Chairman of the Pyramid Lake Paiute Tribe, testified that
the March 2010 rule failed to meet the policy goals of NAGPRA. He
stated:
``The traditional burial is inclusive of everything in a
funerary process, as well as everything in the grounds or in
caves or on scaffolds at the site . . . . In the end, the
tribes could receive the human remains, while museums keep the
funerary objects, which they can sell, trade, or deal away,
irrespective of the policy goals of repatriation laws. It
creates a public policy that grave robbing of objects is
acceptable . . . .''
Recommendation: Congress should clarify the intent of the statute
through a technical correction to require the joint repatriation of
culturally unidentifiable human remains together with associated
funerary objects. The repatriation of culturally unidentifiable human
remains--along with associated funerary objects--is consistent with
NAGPRA and with Congressional intent.
III. Ancient Remains
NAGPRA defines ``Native American'' human remains as remains ``of,
or relating to, a tribe, people, or culture that is indigenous to the
United States.'' 25 U.S.C. 3001(9). In Bonnichsen v. U.S., 357 F.3d
962 (9th Cir. 2004), the Court ruled that Native American remains are
only those that bear some relationship to a presently existing tribe,
people, or culture.'' The interpretation adopted by the court in the
Bonnichsen decision would render ineffective numerous sections of the
Act, such as 25 U.S.C. 3002(a)(2)(C) (claims based solely upon
aboriginal occupation), and 25 U.S.C. 3006(c)(5) (disposition of
culturally unaffiliated remains).
Recommendation: Congress should clarify the intent of the statute
through a technical correction to the definition of ``Native American''
so that the definition would read ``of, or relating to, a tribe,
people, or culture that is or was indigenous to the United States''
(emphasis added).
IV. Disposition of Unclaimed Cultural Items
``Unclaimed'' cultural items have been defined by the National Park
Service as ``Native American human remains, funerary objects, sacred
objects, or objects of cultural patrimony excavated or discovered on
Federal or tribal lands after November 16, 1990 and not claimed under
section 3(a) of the Act (25 U.S.C. 3002(a)).'' In the final
regulations, the Department responded to Comment 14 and stated, ``[a]
proposed rule regarding the disposition of unclaimed cultural items is
currently under development (43 C.F.R. 10.7).'' 75 Fed. Reg. 12,382
(Mar. 15, 2010) (Native American Graves Protection and Repatriation Act
Regulations--Disposition of Culturally Unidentifiable Human Remains).
Recommendation: The Committee should direct the National Park
Service to provide Congress with more information on the proposed
timeline for the rule regarding the disposition of unclaimed cultural
items, and how soon the public will have an opportunity to comment on
it.
V. Increased Funding for NAGPRA Grants
Despite contrary testimony by Ms. O'Dell from the Department of the
Interior during the June 16 oversight hearing, NAGPRA grants are
severely underfunded, particularly with regard to grants requested by
indigenous peoples within the United States. Many of these prospective
grantees lack the financial and staffing resources necessary to conduct
consultations and repatriations.
Recommendations: (A) Congress should provide additional funds for
NAGPRA grants, repatriation, and technical assistance programs that
will help advance the full implementation of NAGPRA and the
repatriation process. Since there has been a steady increase in NAGPRA
grant requests over the years, Congress should provide adequate funds
to meet the growing need for NAGPRA consultation/documentation grants
and NAGPRA repatriation grants to ensure timely and adequate
compliance.
(B) Congress should provide additional, separate funds for federal
agencies so that these agencies seeking financial assistance for
repatriations are not competing with the tribes for already
oversubscribed grant funds that should be exclusively for the tribes.
VI. Oversight and Enforcement of Repatriation by Federal Agencies
The GAO Report admonished several federal agencies for failing to
complete inventories, provide notice of human remains and other
cultural items to tribes, and repatriate such items. A second GAO
report also documented the slow rate of repatriations by the
Smithsonian museums.
Recommendation: Congress should provide strong oversight of federal
agencies, such as the Tennessee Valley Authority and the Smithsonian,
to ensure that the agencies prioritize their repatriation programs and
efforts.
VII. International Repatriation
An estimated 1 to 2 million human remains, funerary objects, sacred
objects, and objects of cultural patrimony currently reside in
international repositories. While the NAGPRA applies to federally
funded institutions within the jurisdiction of the United States, it
currently does not extend internationally. These ancestral remains and
cultural objects left tribal lands through grave robbing, explorers,
scientists, anthropological studies and archaeological excavations,
war, and the sale and trade with U.S. institutions, such as the
Smithsonian. Foreign collections continue to obtain items through
markets that deal internationally in the trade of Native American human
remains and cultural items, many of which could not legally be sold in
the United States.
In December of 2010, President Obama signed the U.N. Declaration on
the Rights of Indigenous peoples, which supports the repatriation of
human remains and cultural items:
Article 12. Indigenous peoples have the right to manifest,
practice, develop and teach their spiritual and religious
traditions, customs and ceremonies; the right to maintain,
protect, and have access in privacy to their religious and
cultural sites; the right to the use and control of their
ceremonial objects; and the right to the repatriation of their
human remains. 2. States shall seek to enable the access and/or
repatriation of ceremonial objects and human remains in their
possession through fair, transparent and effective mechanisms
developed in conjunction with indigenous peoples concerned.
Currently, only a few international repatriations have occurred
from international repositories to tribes, who are often overwhelmed by
the process due to lack of resources. Many of these international
repatriations have taken an excessive amount of time, some upwards of
20 years, and others have been abandoned because of financial
constraints and staffing limitations.
Recommendations: (A) The Committee should investigate the growing
need for international repatriation among tribes and assess
international models for repatriation (for example, the Museum of New
Zealand Te Papa Tongarewa and the Australian Government's International
Repatriation Program).
(B) The Committee should develop legislation that would: (1)
provide funds for indigenous communities in the United States to
research, consult, and repatriate internationally; and (2) penalize the
international exportation and trafficking of Native American human
remains, funerary objects, sacred objects, and objects of cultural
patrimony.
Thank you for the opportunity to provide testimony to the Senate
Committee on Indian Affairs on these very important issues.
______
Prepared Statement of Jack F. Trope, Executive Director, Association on
American Indian Affairs
______
Prepared Statement of John W. McCarter, Jr., President/CEO, Field
Museum of Natural History
______
Prepared Statement of Leo Stewart, Interim Chair, Board of Trustees,
Confederated Tribes of the Umatilla Indian Reservation
______
Prepared Statement of Matthew Wesaw, Chairman, Pokagon Band of
Potawatomi Indians
______
Prepared Statement of George Thompson, Mekko, Ocevpofv Cuko Rakko
(Hickory Ground Ceremonial Ground)
The Hickory Ground Tribal Town of the Muscogee (Creek) Nation
appreciates the opportunity to submit this statement before the closing
of the record on the hearing of the Native American Graves Protection
and Repatriation Act (NAGPRA) on June 16, 2011. The historic site of
Hickory Ground near Wetumpka, Alabama is being threatened with
destruction by development at the site.
We are direct lineal descendants of the historic Ocevpofv Cuko
Rakko (Hickory Ground Ceremonial Ground) etvlwa (Tribal Town), a
constituent of the Muscogee Confederacy and present-day Muscogee
(Creek) Nation of Oklahoma. The struggle to protect our ancestors and
associated objects buried in our traditional aboriginal territory in
Alabama is particularly difficult for ``removed tribes'' such as
ourselves who are now located in eastern Oklahoma.
While the Creek Nation is commonly referred to as a ``tribe,'' the
term ``confederacy'' is historically and politically correct as is
shown by the various treaties and Acts of Congress, judicial opinions
and administrative rulings identifying it as a ``confederacy consisting
of tribes, bands or towns.'' Cf Cohen's Handbook of Federal Indian Law
437, n.87(1941 Ed.). The Creek Nation Confederacy is believed to have
existed in political form as early as 1540, according to John R.
Swanton, The Social Significance of the Creek Confederacy Proceedings
of the Nineteenth International Congress of Americanists 331
(Washington, DC) (Dec. 27-37, 1917).
Hickory Ground Tribal Town is one of 44 original towns that were
removed from homeland settlements in Alabama and Georgia during the
removal era in the 1830's. Sixteen (16) towns still have an active fire
with the ceremonies and social structure of the ancient towns being
maintained today.
In support for the leaders of the Ocevpofv Cuko Rakko, the Muscogee
(Creek) Nation passed a law in 2006, NCA 06-185. It is titled ``A Law
of the Muscogee (Creek) Nation Clarifying the Position of the Muscogee
(Creek) Nation on the Protection of the Muscogee Cultural and
Historical Site of Hickory Ground near Wetumpka, Alabama and
Authorizing a Special Appropriation for the Cost of Necessary Measures
Required to Secure and Protect the Site and/or Cause Commercial and
Gaming Activity to Cease.
The Declaration of Policy for Muscogee (Creek) Nation is stated in
this Act to:
A. Protect cultural sites, whether historic or pre-historic,
within those lands occupied by peoples who became the
constituent Tribal towns of the Muscogee Confederacy and
B. Protect the sanctity of all burials of Muscogee peoples,
based upon the Muscogee common law that a burial is a permanent
resting place for the dead.
In further support, the traditional leaders (Mekkos) signed a
precedent setting document for modem times proclaiming unity among the
signatory Tribal Towns to preserve our burial grounds, mounds and
sacred sites, most located in Alabama, Georgia and Florida. (Attachment
1.)
Cause of Action and Injunctive Relief
In order to protect our burial grounds and grave goods, mounds and
places of cultural patrimony, NAGPRA does not provide us with a right
of action and injunctive relief when destruction and desecration of
these sites occur. This is particularly difficult when the lineal
descendants are far removed from its aboriginal territory. Moreover,
the lineal descendants in traditional tribal towns are grassroots
people hampered by little or no funding in order to aggressively
monitor ancient sites and burials.
The difficulty is when another Tribe moves into an area that is not
its aboriginal area. At the Hickory Ground site the current tribal
owner was given title under grants from the Alabama Historical
Commission to preserve the historic site, but instead, conducted
excavations removing human remains and storing funerary objects at a
state University. Hickory Ground Tribal Town descendants are unable to
require another Tribe to re-inter their ancestors with the correct
funerary objects now stored at a University. Development of the site is
ongoing. As of today, 56 remains that have been removed from graves are
wrapped in newspapers and stored in buckets separated from their
associated funerary objects.
A right of action to seek injunctive relief is not available under
NAGPRA. NAGPRA should be amended to facilitate original objectives of
the law.
Museum Compliance With Inventories
Hickory Ground Tribal Town and Muscogee (Creek) Nation
representatives have been unsuccessful in their attempts to work with
the National NAGPRA Program in their efforts to obtain an inventory of
human remains and objects removed from Hickory Ground and in possession
of a University under a contract from the local Tribe.
According to NAGPRA and noted in the recent GAO Report, federal
agencies and museums are required to compile an inventory of any
holdings or collections of Native American human remains and associated
funerary objects that are in its possession or control. Additionally,
as noted by the GAO, NAGPRA requires these agencies and museums to
prepare a written summary of any holdings or collections of Native
American unassociated funerary objects, sacred objects, or objects of
cultural patrimony in its possession or control, based on the available
information in their possession.
Hickory Ground Tribal Town members wish to protect the ancestors in
a manner befitting the Town's historical and cultural place of honor.
This includes requiring burials to remain intact with all associated
funerary objects.
Under Tribal law NCA 06-185, the Nation particularly states in
Section 1-102, Declaration of Policy:
'P. Burials are not real property, and the ownership of a
burial does not transfer to the owner, possessor, lessor or
lessee of real property or the mineral or subsurface interest
in real property as does the ownership of a fossil, because a
fossil is an artifact of nature and its location in real
property is the result of natural forces, but a burial is a
human structure which was intended from its beginning to never
be disturbed.''
This Tribal law reflects many similarities in United States common
law that addresses human remains and the rights of landowners and
lineal descendants. In our recent discussions with the National NAGPRA
Program seeking clarification on the matter of human remains and
property laws, it would appear that National NAGPRA's interpretation is
that of owner of the property is also owner of the graves on the real
property. Among the purposes of NAGPRA was to account for and address
those unique situations in Native American history that were not
covered in the common laws such as forced removals and to provide equal
protection for graves and religious rights protected under the First
Amendment.
NAGPRA defines ``possession'' as
``having physical custody of human remains, funerary objects,
sacred objects, or objects of cultural patrimony with a
sufficient legal interest to lawfully treat the objects as part
of its collection for purposes of these regulations. Generally,
a museum or Federal agency would not be considered to have
possession of human remains, funerary objects, sacred objects,
or objects of cultural patrimony on loan from another
individual, museum, or Federal agency'' [43 CFR 10.2 (a)(3)(i)]
As stated in the GAO Report NAGPRA defines a federal agency as any
department, agency, or instrumentality of the United States, except the
Smithsonian Institution, and defines a museum as any institution or
state or local government agency, including any institution of higher
learning, that receives federal funds and has possession of, or control
over, Native American cultural items, except the Smithsonian
Institution. Museums, archeological centers, laboratories or storage
facilities that are managed by a university, college, museum, or other
educational or scientific institution would be considered to be
included in NAGPRA compliances.
In the case of the Hickory Ground human remains and funerary
materials that are at a state university that receives federal funding,
it would seem that the thresholds for ``possession'' and ``legal
interest'' have been met. Tenured professors and graduate students have
published papers analyzing the human remains and archaeological
material from the Hickory Ground site. We have not been consulted in
any of these studies.
Conclusion
Without consultation with the proper tribal relations of the
remains and funerary objects, the objectives of NAGPRA are ignored and
the NAGPRA operations become dangerously close to a dumping operation.
Like the sciences and the formalized archaeological and anthropological
studies often associated with the study of Native peoples and often
times funded through federal granting programs, we ask for due
diligence, transparency, and accountability in the research.
We are not requesting a formal repatriation. We do represent one of
the challenges addressed in the GAO Report. Our current cultural
practices (including ceremonial and burial) represent an unbroken
heritage only interrupted by our forced removal from Alabama to
Oklahoma. If we and other removed tribes continue to be divorced as
stakeholders in the conversations involving our ancestral homelands and
ancestors and if this part of the historical record is not acknowledged
or included in archaeological assessments, scholarly publications, and
NAGPRA reporting, such exclusion does a disservice to the research
involving the study and preservation of the archaeological record that
is supposed to benefit everyone. Just like us, the small number of
tribes who reside in areas once occupied by tribes removed to Oklahoma
and elsewhere, represent a portion of the Native experience in the
Southeast. To exclude any potential stakeholders or concerned
communities from the consultation/research process calls into question
the validity and thoroughness of the research and could result in
skewed or revisionist history.
Thank you for the opportunity to submit this statement for the
record.
Attachment 1
______
Prepared Statement of Natalie A. Landreth, Counsel, Working Group on
Native American Culturally Unidentified Human Remains
______
Prepared Statement of Reno Keoni Franklin, Chairman, National
Association of Tribal Historic Preservation Officers
______
Prepared Statement of Robert W. Trepp, Member, Loca'pokv Tribal Town,
Beaver Clan, and Muscogee (Creek) Nation
Mr. Chairman, Mr. Vice-Chairman, and Members of the Committee: I am
a member of Loca'pokv Tribal Town and its Beaver Clan, and an enrolled
member of the Muscogee (Creek) Nation, a federally recognized tribe
with a nation-to-nation relationship of long duration with the United
States. The Muscogee Nation's first Treaty with the United States was
ratified in 1790, the last action which the U.S. Senate took when the
U.S. Capitol was in New York City. In Article Ten of the 1866 Treaty
between our two Nations, the United States recognizes the cultural
rights of the Muscogee Nation and its citizens and guarantees them in
perpetuity:
ARTICLE 10.
The Creeks agree to such legislation as Congress and the
President of the United States may deem necessary for the
better administration of justice and the protection of the
rights of person and property within the Indian territory:
Provided, however, [That] said legislation shall not in any
manner interfere with or annul their present tribal
organization, rights, laws, privileges, and customs. 14 Stat.
785
Muscogee citizens respect the federal repatriation laws as human
rights and civil rights, but also as treaty rights.
I am a charter member of the Board of Directors of the Inter-Tribal
Sacred Land Trust, a non-profit Tennessee corporation founded for the
express purpose of protecting Native burials and cultural sites. I
appeared before this Committee on July 17, 2002, and testified
regarding the protection of sites and burials in the southeastern
United States.
I would like to offer my full support to the ``or was'' amendment
to NAGPRA, which is an essential technical amendment to restore the
original intent of Congress in the statute regarding both the temporal
and geographical definitions applied to the jurisdiction established by
law. I encourage the Congress to enact this provision immediately, as
it is necessary for the administration of NAGPRA as first envisioned by
this Committee and intended by Congress. I would also like to offer my
support for either an administrative rule change or legislative action,
which clarifies that, first, no human remains or associated funerary
objects should be classified as ``culturally unidentifiable'' without
(a) full disclosure of all field notes and accession notes to any
tribal government with a cultural affiliation or certain geographical
relationship to the burial or object, and (b) the consent of the
culturally affiliated tribal governing body(ies); and, second, that
``culturally unidentifiable'' objects found with human remains are not
to be separated at any time or by any decision made under NAGPRA; and,
third, that ``culturally unidentifiable'' objects not found in a burial
context, or of an unknown context, be reviewed as above as possible
``items of cultural patrimony,'' giving full weight to the analysis of
the culturally affiliated Tribe(s) or Nation(s) and its(their)
traditional religious leaders. If necessary, I can provide additional
analysis of the ways museums, colleges and federal agencies have used
the phrase ``culturally unidentifiable `` to avoid the pure intent of
the law. The great majority of these human remains and associated
funerary objects are unidentified, but not ``unidentifiable.'' Those
which truly are unidentifiable are of no scientific value and should be
repatriated to the Tribes and Nations in the region of ``discovery''
for decent return to a natural environment.
Holding repositories often apply another term, ``culturally
unaffiliated,'' to a Tribe(s) or Nation(s), implying that it(they) do
not have standing to repatriate people or objects because they are not
culturally affiliated with the Tribe or Nation that no longer can speak
for itself. This is a blatant misapplication of the law and misuse of a
term that was intended to address the very circumstances involved when
human remains and funerary items of the dead have no modern Tribe or
Nation to make the repatriation application. NAGPRA intended for the
living Tribe(s) or Nation(s) to speak for the dead as a culturally
affiliate(s), related by geography or confederation or language or
ceremony or any other aspect of cultural affiliation. Repatriations
were done prior to repatriation law, and since, by culturally
affiliated Tribes and Nations and by coalitions of culturally
affiliated Tribes and Nations. When the holding repositories use
``culturally unaffiliated'' and other such terms, they usually do so in
an effort to hold on to the people and objects in their possession by
casting doubt on the Native identities and relationships, which often
are a living part of oral histories and songs not necessarily known to
the collections' ``experts.'' Not only Muscogee oral history, but all
current evidence from scientific study shows that the Muscogee
confederacy is just that--a confederacy of tribes, large and small,
which originated or moved into the southeast at different times and
grew to share a common religion, common languages, and common cultural
norms, only pressured into a common government by the powers of
England, France and Spain. The academic terminology of ``pre-Creek'' or
``pre-Muskoghean'' or ``pre-Columbian'' or ``pre-history'' are
fictions, as both traditional and scientific evidence show, and used by
people who thwarted NAGPRA repatriations and receive federal monies to
do so. This and other terminology such as ``woodland'' or ``archaic''
are feeble attempts to ignore our identity as a confederacy. I reject
the efforts of academics and bureaucrats to re-define the culture and
history of my own people for these limited purposes and in the face of
clear and convincing evidence.
I further implore the Committee to enact a statutory right of
action for Native American Tribes and Nations to defend our sacred
places in court. As you well know, the U.S. Supreme Court opined in
1988 that we do not have such a door to the courts and that Congress
would need to make a special law for this purpose. It is indeed
unfortunate that no action has been taken in nearly a quarter-century.
Justice delayed is justice denied, and this is a significant issue, not
only to Native people, but to the audience of world opinion upon which
the international reputation of the United States relies. The United
States was quick to denounce the destruction of ancient monuments in
Afghanistan, but places of great significance to Native people are
destroyed frequently within America's borders, and sometimes by federal
agents and federal permission.
Finally, I must raise an issue which I did not hear in earlier
testimony. Because of the movement of tribes caused by colonization and
western expansion (codified as federal policy in the Indian Removal Act
of 1830), it is essential that no tribal government have the sole power
to authorize the disturbance of the cultural site of another federally
recognized Tribe or Nation without the prior consultation with that
Tribe resulting in a mutually ratified Memorandum of Agreement
enforceable in federal court.
I recommend that the Committee instruct members of both the
majority and minority staff to prepare a full bipartisan report to the
Committee on this issue. One case study which should be included in
that report is the almost complete physical destruction of the site at
Hickory Ground outside Wetumpka, Alabama, by the Poarch Band to build
facilities for gaming and for tobacco sales. This is a burial,
ceremonial and historical site to which the Poarch Band has no cultural
affiliation or historical relationship whatsoever. In fact, the Poarch
Band sees themselves as historic ``enemies'' of the main--forcibly
removed--body of Muscogee peoples. The Poarch Band secured this site--
the last Capitol of the Muscogee Confederacy before removal--by using
federal funds for its protection, and has defrauded the United States
by its subsequent actions. They have treated burials with total
disrespect. The sacred landscape of this historic site has been
bulldozed and partly paved. The Poarch Band has disputed every effort
by the Hickory Ground leaders and people (citizens of the Muscogee
Nation in Oklahoma) to protect the site and its burials. While I am
sure there are other sites where Tribes have cooperated in full respect
for the culture of another people, this one case will clearly
demonstrate the abuses which are not only possible, but easy to
document sufficiently to the Committee that this type of situation can
lead to events in total violation of the spirit and intent of NAGPRA,
as well as religious freedom and historic preservation laws.
I take great pride in being able to address this Committee again on
behalf of the Muscogee people and, humbly, in the place of our
traditional religious leaders, who are at the most important point in
their annual ceremonial cycles and could not have testified at this
time of year.
______
Prepared Statement of Dr. Rosita Kaahani Worl, Vice Chair, Sealaska
Corporation
My name is Dr. Rosita Kaahani Worl. I serve as the Vice Chair of
the Sealaska Corporation, a Native corporation created under the Alaska
Native Claims Settlement Act of 1971 (ANCSA), and the President of the
Sealaska Heritage Institute, located in Juneau, Alaska.
I am also a member of the NAGPRA Review Committee, having served on
the Committee for 11years. It is in that capacity as well as
administering a NAGPRA program that I have had the opportunity to
develop an in-depth understanding of how the Act has been implemented
over the past 21 years, and to experience some of the challenges
associated with the repatriation process that the Act authorizes.
As the members of this Committee know, ANCSA was enacted to settle
the aboriginal land claims of Alaska Natives. Through that Act, the
Congress authorized the establishment of Alaska Native regional and
village corporations as the instruments through which the Act's
objectives would be implemented. Since that time, Congress has enacted
over 100 laws that define the ANCSA corporations as ``Indian tribes''
or define ANCSA lands as ``Indian lands''. \1\
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\1\ Sealaska Report ANCSA Corporations and the Definition of
"Tribe" 1999. An updated report is in the process of being finalized.
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NAGPRA Grants
ANCSA corporations have made significant contributions to the
implementation of the NAGPRA, providing benefits to Alaska Native
communities and contributing to the survival of Native cultures. Alaska
Native corporations and Alaska Native tribes have participated nearly
equally in the implementation of the Act. For instance, from 1998
through 2008, twelve Alaska Native corporations administered $2,294,194
in NAGPRA grants while seventeen Alaska Native tribes received
$2,409,684 in NAGPRA grants during the same period.
NAGPRA Repatriation Claims
Fifteen Alaska Native corporations have made successful
repatriation claims for 1,730 cultural objects \2\ and thirty-nine
Alaska Native tribes have made successful repatriation claims for 526
cultural objects.
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\2\ Of this total, 1,600 objects were individual glass beads.
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NAGPRA Review Committee
Three Alaska Natives have served on the NAGPRA Review Committee,
and at least one such NAGPRA Review Committee member was nominated by
an ANCSA corporation and the others were nominated by Alaska Native
tribes.
Alaska Native Corporations Contributions to NAGPRA
The inclusion of Alaska Native corporations in NAGPRA has provided
benefits to Native people throughout Alaska and the lower 48 States.
Regional ANCSA corporations, like Sealaska Native Corporation, have
used their NAGPRA grant funds to provide training for village
corporations and tribes within their region to enhance their
understanding of the Act's provisions and to build capacities to
participate in the repatriation processes that the Act authorizes.
ANCSA corporations have also dedicated their corporate funds to support
NAGPRA activities. For instance, because NAGPRA grant funds are not
available to support costs associated with dispute requests to the
NAGPRA Review Committee, ANCSA corporations that have initiated such
requests are bearing the costs of those activities.
Some Alaska Native tribes have recently made decisions not to
participate in NAGPRA because they do not have the resources to support
ongoing NAGPRA programs without the benefit of NAGPRA grants and
supplemental organizational funds. In these instances, tribal members
have called upon ANCSA corporations to file their repatriation claims.
Likewise, Alaska Natives, who do not live within communities
represented by a tribal government have called on ANCSA Corporation to
initiate their repatriation claims.
During the time that I have served on the NAGPRA Review Committee,
I and my fellow committee members have observed an ever-increasing
escalation in costs associated with either making repatriation requests
or seeking the committee's review of disputes. The dispute resolution
process is often lengthy and sometimes results in costly litigation if
the review committee's determination is not accepted by the parties to
a dispute. In Alaska, the organized Native groups that are best able to
make these now sizable investments in the return of Native remains and
cultural items are the Alaska Native corporations.
In addition, under the Alaska Native Claims Settlement Act, Alaska
Native corporations are the statutorily-designated owners and managers
of Native lands--they are thus the first entities to which federal
agencies would typically turn in determining the cultural origins and
affiliations of objects of cultural patrimony. And in a provision of
Federal law enacted in 2004 and made applicable to all Federal
agencies, Public Law 108-447 directs Federal agencies to consult with
Alaska Native corporations. \3\
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\3\ Pub. L. No. 108-447, 118 Stat. 2809, Dec. 8, 2004.
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In recent times, as a function of the Government Accountability
Office's findings, there has been some debate associated with the
inclusion of Alaska Native corporations in the NAGPRA regulations, and
the Interior Solicitor's Office has opined that because the Congress
employed similar terminology in the 1994 Federally-Recognized Tribes
List Act and in the 1990 Native American Graves Protection and
Repatriation Act, the definitions in one Act should constrain the
interpretation and application of the earlier-enacted law.
However, it is not only critically important but imperative that
each Act be examined within the context of Federal policy and the
objectives that the Congress sought to achieve in each Act. The 1990
enactment of the NAGPRA was built on the foundation of assuring that
cultural properties would be the subject of the congressionally-
authorized repatriation process--and that such properties would be
returned to the rightful owners or keepers of objects of cultural
patrimony. The Act had less to do with Native governance and more to do
with Native cultures. That the cultural context was what informed
congressional intent behind the Act is found in the unusual inclusion
of traditional Native American religious leaders as it relates to
sacred objects.
In contrast, the 1994 Federally-Recognized Tribes List Act has its
foundation in the government-to-government relationship between the
United States government and tribal governments. The Act is intended to
reflect the United States' recognition of the sovereignty of Native
governments, and to assure that all Native governments are treated
equally under Federal law and policy.
Thus to predicate the interpretation of a law enacted in 1990 on a
retroactive application of a law enacted in 1994 that is based on a
distinctly different policy foundation, leads to misinterpretation of
Congress' intent in wanting to assure that the repatriation policy was
and is to apply to all Native people across the United States.
Accordingly, I would urge the members of Senate Indian Affairs
Committee to consider an amendment to the NAGPRA that provides the
means for Alaska's Native people to fully participate in the Act's
repatriation processes and to more effectively realize the goals of the
Act.
Another critical component of the Act requires museums to file
summaries and inventories, and yet, we know of one museum in the
Northwest area that sold its collection of cultural items that were
subject to the NAGPRA without compiling a summary or inventory. We
believe that the burden of proof should be on a museum to document that
deaccessioned items are not subject to NAGPRA, as opposed to the
position that has been taken by the National NAGPRA Program Office--
which is that the burden of proof should be placed on tribes and Native
organizations.
Clearly, the policy of the Native American Graves Protection and
Repatriation Act is to protect Native American human remains and
objects of cultural patrimony and to assure that they are repatriated
to their rightful owners. The Act does not authorize Indian tribes and
Native organizations to act as unfunded law enforcement agents charged
with detecting violations of the Act or noncompliance with the Act, nor
does it assign the burden of proof to Native entities to police the
actions of museums and document the origins of deaccessioned objects.
Finally, the members of the Committee are aware that the National
Museum of the American Indian Act (NMAI Act) was enacted into law in
1989--and thus while preceding the enactment of the NAGPRA, the NMAI
Act includes provisions similar to, but not identical to the provisions
of the NAGPRA which authorize the repatriation of human remains and
cultural objects. Nonetheless, the Government Accountability Office has
recently completed an examination of the Smithsonian Institution's
implementation of the repatriation provisions of the NMAI Act and found
them lacking. \4\
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\4\ U.S. Government Accountability Office Report to Congressional
Requesters, May 2011, entitled "Smithsonian Institution: Much Work
Still Needed to Identify and Repatriate Indian Human Remains and
Objects", GAO-11-515.
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Native groups have also expressed concern that the NMAI Act has
been interpreted by the Smithsonian Institution as applying only to
Smithsonian's Natural History Museum, the GAO concluded that ``the
statutory language and its legislative history do not support that
view.'' \5\
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\5\ I.d., page one, GAO-11-515, Smithsonian Repatriation.
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As has been discussed in various forums on the NAGPRA, tribal
commentators, as well as representatives of museums and scientific
institutions, have expressed the view that the Congress should act to
extend the provisions of the NAGPRA to all museums within the
Smithsonian Institution.
I thank the U.S. Senate Committee on Indian Affairs for affording
concerned Native people the opportunity to share their views on the
implementation of the Native American Graves Protection and
Repatriation Act with the Committee and the Congress.
______
Prepared Statement of the Salt River Pima-Maricopa Indian Community
______
Prepared Statement of William F. Limp, Ph.D., President, Society for
American Archaeology
Dear Chairman Akaka:
Thank you for holding the hearing, ``Finding Our Way Home:
Achieving the Policy Goals of NAGPRA.'' Implementation of the Native
American Graves Protection and Repatriation Act is a very important
issue for the Society for American Archaeology (SAA), which represents
some 6,800 members who work in a range of settings, from academia to
tribal governments. As an active supporter of the idea, passage and
implementation of NAGPRA, and as one of the key organizations involved
in drafting the original regulations, the SAA welcomes the opportunity
to provide testimony on recent developments in the legislation that
affect our members. Since passage of NAGPRA, the SAA has seen a
considerable expansion of institutional and tribal collaborations as a
direct outcome. This collaborative work continues to be a growing
strength in archaeological investigations in the United States. NAGPRA
has encouraged active engagement among institutions, agencies, Native
American tribes and Native Hawaiian organizations through consultation
as outlined in the regulations. The regulations have led to the
development of relationships of trust and mutual understanding of the
law.
Our understanding of this hearing's purpose is that it will address
issues that have emerged resulting from the recent Government
Accountability Office reports on NAGPRA (GAO-10-768 July 28, 2010) and
the Smithsonian Institution/NMAI (GAO-11-515 May 25, 2011), and
implementation of the final regulations on the Disposition of
Culturally Unidentifiable Native American Human Remains (43 CFR 10.11).
The SAA respectfully submits the following points of concern on these
issues. We also note that the Society has provided detailed responses
to the DOI (letter dated June 29, 2011) in response to their request
for comments on the overall NAGPRA process. We have attached a copy of
that letter for your reference. In particular we note that in these new
regulations there are no contingencies under which a museum could hold
culturally unaffiliated human remains, an oversight which we believe is
in neither the public interest nor the interest of all stakeholders
concerned.
1) We would like to express concerns about DOI's response to
federal, tribal, and public comments on the draft regulations of 43 CFR
10.11 that were submitted prior to the implementation of the final
regulations in May 2010. While many comments were addressed in the
published notice, very few appear to have had significant impact on the
development of the regulations from their draft to final form.
Additional written comments were solicited immediately prior to the
implementation of the final regulations with assurances given by
representatives of the National NAGPRA office that these comments would
be used for future revisions and/or amendments to 43 FCR 10.11. Given
the upcoming discretionary review of the full NAGPRA regulations, will
these additional written comments be revisited as well? This issue is
critical one for the Society and its membership because many points of
this section of the regulations remain unclear, inconsistent with the
original NAGPRA regulations, and potentially harmful to the positive
relationships that have developed among Indian tribes, Native Hawaiian
organizations, museums, and Federal agencies over the past 20 years.
2) Funding in the form of NAGPRA grants has not increased in
proportion with the increase in compliance and disposition activities
required to implement 43 CFR 10 and particularly the new requirements
of 43 CFR 10.11. Both tribes and institutions face an increased
financial burden in conducting consultation, background study, and
other associated activities. The GAO report supports our concern with
funding shortfalls. For example, on page 28 of the GAO Report on
NAGPRA, all Federal agencies identify lack of funding as the primary
obstacle to compliance efforts. The U.S. Fish and Wildlife Service
alone estimated that ``it would cost $35 million and take 28 years to
properly review all of [their] collections for NAGPRA items.''
Compliance requires qualified individuals, suitable facilities for
maintaining inventoried human remains and cultural items, time to
engage in thorough consultation efforts, and resources for the
processes of repatriation and disposition. All of these activities
require substantial funding. The Society recognizes the significance of
the comments of Senator Murkowski during the hearing regarding best
practices and agrees that there are ways that the overall process could
be streamlined for museums as well as Federal agencies to facilitate
compliance, but funding will still be necessary. NAGPRA grants are an
important source for compliance efforts for tribes and museums, and the
Society urges substantially increased funding for this vital program.
3) We are also strongly committed to the continuation of scientific
investigations of archaeological objects and skeletal remains that help
illuminate cultural affiliation, past lifeways, or other important
topics. NAGPRA seeks to balance the rights of Native communities to
reclaim remains of their ancestors with the public interest in
preserving, documenting and understanding our shared past. But these
interests often overlap, and the Society would like to draw the
Senate's attention to the importance of preservation of evidence of the
past by museums, and the value of scientific investigations--when
agreeable to all stakeholders concerned--in helping understand the past
and advance the interests of Native communities, scholarly communities,
and the general public alike.
4) GAO review of NAGPRA also examined the National NAGPRA Review
Committee. The report identified concerns about inappropriate actions
of the National NAGPRA Program in the appointment process of Review
Committee members. In addition, the report notes that past appointees
were unaware of how the appointments were made subsequent to the
submission of nominees (GAO-10-768 July 28, 2010, Page 48). The Society
agrees with the GAO report findings that the actions of the National
NAGPRA Program and the lack of transparency in the appointment process
undermines the confidence of those who would use the Review Committee
to facilitate dispute resolutions and for findings of fact. It is
important that the appointments be made with the goal of providing a
balanced panel of individuals representing all concerned parties. The
Society would ask what measures will be taken in order to ensure a
balanced process?
5) The Society would like to draw attention to two key issues of
concern pertaining to the Review Committee's approach to the
facilitation of disputes and findings of fact.
The fairness of the process. There is a wide perception that
certain types of evidence and those who present them are not
given equal treatment or value by the Committee.
Representatives from both institutions and tribes perceive
imbalances in time and attention accorded each side in
disputes.
The weight given to the findings and recommendations of the
Review Committee. Misunderstandings and frustrations abound
regarding how parties should interpret and act on the findings
and recommendations of the Review Committee. The law is
explicit that the committee's decisions do not carry the weight
of legal decisions and are strictly recommendations.
Increasingly, however, those approaching the Review Committee
for findings and recommendations either misinterpret the weight
of findings and recommendations as carrying the weight of legal
decisions or, conversely, want the Committee to be empowered to
make findings that have the weight of legal decisions.
Overall, there is a lack of clarity on how the deliberations of the
Committee are undertaken, and how parties who seek the guidance of the
committee should respond to the Committee's findings and
recommendations. The SAA asks what can be done to make the process more
transparent, in order to ensure that those requiring the use of the
Committee as a neutral party in the facilitation of disputes and
findings of fact can do so with the confidence that the process
requires?
In closing, the SAA wishes to underscore the continued need for
maintaining consistency of process and balance in consultative
relationships that have emerged in the implementation of NAGPRA. The
concerns expressed reflect issues that pose potential hardships to all
parties under the process outlined by the recent changes to NAGPRA and
challenges to the continued success of achieving the policy goals
originally established.
Thank you very much for your time and consideration.
Attachment
______
Response to Written Questions Submitted by Hon. Daniel K. Akaka to
Ted Isham
Question. What resources are available and what resources are
needed by the tribes to do the work of NAGPRA?''
Answer. Senator Akaka, I appreciate the question and as has been
noted in my submitted written testimony, there are several areas of
work to be done within NAGPRA to more effectively and efficiently
repatriate the Ancestors that are in collections and on shelves. To
allow these ancestors to continue their journey home is a moral duty
that we all have.
There needs to be made available an ombudsman, to work with the
Indian tribes and federal agencies to help facilitate the
repatriation process.
There needs to be four full-time NAGPRA investigators employed to
insure compliance.
Seek to improve NAGPRA compliance by increasing the civil penalty
amounts.
There needs to be located and secured reburial sites on federally
protected lands.
NAGPRA Grants shall support projects that involve consultation with
museums, universities, and institutions that receive federal
funds.
Support NAGPRA at the level of at least one million dollars for
NAGPRA administration, and four million dollars exclusively for
the NAGPRA grants.
Urge the Administration to amend the rule on culturally
unidentified (CUI) Human Remains, so that Human Remains and
their Associated Funerary Objects (AFO) are repatriated
together.
Sponsor a legislative remedy by clarification of legal definition
of ``Native American'' by enacting the ``or was'' amendment.
Empower the GAO to continue investigations on the Museums for
NAGPRA conpliance.
The formation of coalitions to expedite the repatriation process
needs to be given more weight when making a determination of
cultural affinity to a group of Native Tribes.
From the Resolution passed by OCoT (the Oklahoma Coalition of
Tribes)
A) An ombudsman be appointed to work with the Indian tribes
and federal agencies to facilitate timely NAGPRA compliance and
that four full-time NAGPRA investigators be employed within the
Department of the Interior to ensure that museums,
universities, and institutions that receive federal funds
comply with NAGPRA; and
B) Seek to improve NAGPRA compliance by increasing the civil
penalty amounts; and
C) Federal agencies, in consultation with Indian tribes, shall
locate and secure reburial sites on federally protected land to
be used by Indian tribes for the reburial of human remains and
objects repatriated through the NAGPRA process; and
D) NAGPRA Grants shall support projects that involve
consultation with museums, universities, and institutions that
receive federal funds and hold federal collections; and
E) Indian tribes be provided with a copy of information that
federal agencies submit to the National Park Service for
inclusion in the Culturally Unidentifiable Native American
Inventory Database, thus creating a process for directly
sharing information with Indian tribes; and
F) Develop a NAGPRA tribal consultation policy for sharing
information among Indian tribes, federal agencies, museums,
universities, and institutions that receive federal funds that
would include, but is not limited to, NAGPRA Inventories,
Summaries, archaeological reports, and other relevant data; and
G) The Department of Interior shall promulgate the remaining
reserved section(s) of the NAGPRA regulations; and
H) Support NAGPRA at the level of at least $1 million for
NAGPRA administration, and $4 million exclusively for the
NAGPRA grants to Indian tribes and museums; and
I) Federal agencies, museums, and institutions that receive
federal funds shall participate in an annual consultation
meeting with Indian tribes for the purpose of discussing
policy-making, priority-setting, funding resources, and NAGPRA
compliance, to be held in Oklahoma, the home of 39 federally
recognized Indian tribes
Administrative Remedy
The policy goal of NAGPRA is that the Associated Funerary Objects
would be returned to their respective Native American communities. We
ask the Committee to urge the Administration to amend the rule on
culturally unidentified Human Remains issued on March 15, 2010, so that
the Human Remains are repatriated with their Associated Funerary
Objects. The Associated Funerary Objects are the primary means of
identifying the unidentified Human Remains--and the policy goal of that
section of NAGPRA is to identify what the repositories claim as
unidentifiable Human Remains. We are deeply concerned that the
Associate Funerary Objects will be further separated from the Human
Remains, making their identification even more difficult, if not
impossible. The Administration claims that Congress did not make its
intentions clear and that it cannot act without further guidance from
Congress. We believe that Congress made itself clear in setting the
NAGPRA policy goals, that the Department of the Interior through the
National NAGPRA Program office substituted its judgment for that of
Congress and that the Administration can revise the rule now and does
not need to wait for Congress.
The lack of a publicly available and agreed upon tribal
consultation policy and protocol for repatriation purposes remains a
stumbling block to the achievement of the goals of NAGPRA. Consultation
is a bedrock of the repatriation process and there needs to be
consultation guidelines for the full range of Native cultural rights.
Consultation with full participation of the tribes at all levels of the
notification process is the only way to insure success of the
repatriation.
Legislative Remedy
A technical clarification is needed in the legal definition of
``Native American'' by enacting the ``or was'' amendment that the
Committee has recommended several times. Without the regulatory change
and the technical amendment, we are impeded in our efforts to conduct
repatriations and the institutions will continue to hold and ``study''
our Ancestors and associated funerary objects. This and other such
blocking mechanisms make it very difficult for any tribe to complete
the NAGPRA process.
Senator Akaka, I thank you for the time you and your Committee have
given the Muscogee (Creek) Nation to weigh-in on this important issue.
______
Response to Written Questions Submitted by Hon. Daniel K. Akaka to
Kevin Gover