[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

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

                                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

                              ----------                              
                                                                   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

                              ----------                              


                        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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \5\ Haw. Rev. Stat.  6E-43 to -43.6.
    \6\ Haw. Adm. Rules 13-300-35.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \7\ 25 USC 3005(e).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \1\ Sealaska Report ANCSA Corporations and the Definition of 
"Tribe" 1999. An updated report is in the process of being finalized.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \2\ Of this total, 1,600 objects were individual glass beads.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \3\ Pub. L. No. 108-447, 118 Stat. 2809, Dec. 8, 2004.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \5\ I.d., page one, GAO-11-515, Smithsonian Repatriation.
---------------------------------------------------------------------------
    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



                                  
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