[Senate Hearing 117-339]
[From the U.S. Government Publishing Office]


                                                       S. Hrg. 117-339

                THE LONG JOURNEY HOME: ADVANCING THE 
                 NATIVE AMERICAN GRAVES PROTECTION AND 
                 REPATRIATION ACT'S PROMISE AFTER 30 
                 YEARS OF PRACTICE

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

                                HEARING

                               BEFORE THE

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             SECOND SESSION

                               __________

                            FEBRUARY 2, 2022

                               __________

         Printed for the use of the Committee on Indian Affairs
         
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]         

                               __________

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
48-310 PDF                 WASHINGTON : 2022                     
          
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                      COMMITTEE ON INDIAN AFFAIRS

                     BRIAN SCHATZ, Hawaii, Chairman
                 LISA MURKOWSKI, Alaska, Vice Chairman
MARIA CANTWELL, Washington           JOHN HOEVEN, North Dakota
JON TESTER, Montana                  JAMES LANKFORD, Oklahoma
CATHERINE CORTEZ MASTO, Nevada       STEVE DAINES, Montana
TINA SMITH, Minnesota                MIKE ROUNDS, South Dakota
BEN RAY LUJAN, New Mexico            JERRY MORAN, Kansas
       Jennifer Romero, Majority Staff Director and Chief Counsel
        K. Williams, Minority Staff Director and General Counsel
                            
                            
                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on February 2, 2022.................................     1
Statement of Senator Cantwell....................................    34
Statement of Senator Cortez Masto................................    33
Statement of Senator Murkowski...................................     2
Statement of Senator Schatz......................................     1

                               Witnesses

Beasley, Joy, Associate Director, Cultural Resources, 
  Partnerships, and Science, National Park Service, U.S. 
  Department of the Interior.....................................     4
    Prepared statement...........................................     5
Grussing, Valerie, Ph.D., Executive Director, National 
  Association of Tribal Historic Preservation Officers...........    21
    Prepared statement...........................................    22
Lindsey, Carmen ``Hulu'', Chair, Office of Hawaiian Affairs......    15
    Prepared statement...........................................    16
Ortiz, Dr. Anna Maria, Director, Natural Resources and 
  Environment, U.S. Government Accountability Office.............     7
    Prepared statement...........................................     8
Worl, Rosita, Ph.D., President, Sealaska Heritage Institute......    27
    Prepared statement...........................................    29

                                Appendix

Association on American Indian Affairs, prepared statement.......    45
Chavarria, Hon. J. Michael, Governor, Santa Clara Pueblo, 
  prepared statement.............................................    52
Dawley, Martina, Tribal Historic Preservation Officer, Hualapai 
  Tribe, prepared statement......................................    60
Friend, Hon. Billy, Chief, Wyandotte Nation, prepared statement..    58
Mitchell, Mark, Chairman, All Pueblo Council of Governors, 
  prepared statement.............................................    43
Pasqual, Theresa, Tribal Historic Preservation Officer, Pueblo of 
  Acoma, prepared statement......................................    43
Response to written questions submitted by Hon. John Hoeven to 
  Joy Beasley....................................................    79
Response to written questions submitted by Hon. Ben Ray Lujan to:
    Joy Beasley..................................................    83
    Valerie Grussing, Ph.D.......................................    72
    Dr. Anna Maria Ortiz.........................................    67
    Rosita Worl, Ph.D............................................    76
Response to written questions submitted by Hon. Brian Schatz to:
    Joy Beasley..................................................    80
    Valerie Grussing, Ph.D.......................................    70
    Carmen Hulu Lindsey..........................................    62
    Dr. Anna Maria Ortiz.........................................    66
Salt River Pima-Maricopa Indian Community, prepared statement....    54
Society for American Archaeology, prepared statement.............    49

 
THE LONG JOURNEY HOME: ADVANCING THE NATIVE AMERICAN GRAVES PROTECTION 
       AND REPATRIATION ACT'S PROMISE AFTER 30 YEARS OF PRACTICE

                              ----------                              


                      WEDNESDAY, FEBRUARY 2, 2022


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:30 p.m. in room 
628, Dirksen Senate Office Building, Hon. Brian Schatz, 
Chairman of the Committee, presiding.

            OPENING STATEMENT OF HON. BRIAN SCHATZ, 
                    U.S. SENATOR FROM HAWAII

    The Chairman. Good afternoon. Welcome to the committee's 
oversight hearing entitled The Long Journey Home: Advancing the 
Native American Graves Protection and Repatriation Act Promise 
After 30 Years of Practice.
    We are at a critical moment of reckoning with this 
Country's shameful past Federal policies that have failed 
Native peoples. As the committee well knows, there are numerous 
examples of these failures. The mistreatment and unjust removal 
of Native American ancestral remains from their resting places 
is just one of them.
    For decades, the Native American Graves Protection and 
Repatriation Act of 1990 or NAGPRA has helped to heal the pain 
felt by generations through return and repatriation of these 
remains to their Native communities. NAGPRA's promise of 
ancestral homecoming has taken on a deeper meaning recently 
after the grim discovery of mass graves of Native children at 
government-run boarding schools in Canada, reopening old wounds 
and forcing the U.S. to face its own troubled legacy of Native 
boarding schools.
    As the Department of the Interior undertakes its Federal 
Indian boarding school initiative to examine this legacy, it is 
my hope that as a Nation we are truly on the path toward 
reconciliation and healing. Repatriating ancestral remains and 
cultural items is difficult and often painful work. Recognizing 
the significance of this work to Native communities, I would 
like to turn the floor over to Napua Greig, to provide us with 
an opening to help us set the tone for this important 
discussion.
    Ms. Greig?
    Ms. Greig. [Greeting in Native tongue.] I send you warmest 
regards from Hawaii, and more specifically the island of Maui. 
Our iwi, our bones are sacred, because in those iwi are the 
mana, the energy, the power, the very essence of a person long 
after their passing. And here on Maui lies the final resting 
place of perhaps the highest-ranking line of chiefs, the 
[phrase in Native tongue] line. Today, I present to you a 
mookuauhau, a genealogy of the [phrase in Native tongue] line 
of chiefs, which begins at [phrase in Native tongue], the 
sacred burial cave here at Iao.
    [Traditional Opening in Native language.]
    The Chairman. Thank you so much, Napua.
    NAGPRA became law on November 16th, 1990. For the first 
time, there was a process for Native communities to return 
their ancestral remains and cultural items back to their 
homelands from the shelves of museums and other repositories.
    But when Congress was contemplating NAGPRA, the 
Congressional Budget Office estimated that it would take 10 
years to complete this work. Now, more than 30 years later, 
over 200,000 ancestral remains and approximately 2.5 million 
associated funerary items have been identified. But only about 
42 percent of ancestral remains and 70 percent of cultural 
remains have been repatriated.
    So while progress is certainly being made, the journey 
continues for tens of thousands of ancestors and millions of 
cultural items to find their way home. The promise of NAGPRA 
continues.
    Before I turn to Vice Chair Murkowski, I would like to 
extend my sincere welcome and aloha to Chair Hulu Lindsey of 
the Office of Hawaiian Affairs, and to our entire panel of 
witnesses today. I look forward to your testimony and our 
discussion.
    Vice Chair Murkowski?

               STATEMENT OF HON. LISA MURKOWSKI, 
                    U.S. SENATOR FROM ALASKA

    Senator Murkowski. Chairman Schatz, gunalcheesh. We 
appreciate your holding this very, very important oversight 
hearing today.
    As you mentioned, it was back in 1990 that Congress passed 
NAGPRA to establish a legal framework for the identification 
and the repatriation of human remains, funerary objects, sacred 
objects, and objects of cultural patrimony of Indian tribes and 
Native Hawaiian organizations.
    As the Association of American Indian Affairs states in a 
letter to Interior, they say ``With NAGPRA, Congress announced 
that continued possession of the deceased bodies of our 
ancestors and their burial belongings, sacred objects, and 
objects of cultural patrimony was legally and morally 
unsupportable.'' NAGPRA recognizes that human remains of any 
ancestry must at all times be treated with dignity and with 
respect.
    It is time, it is past time, that this Committee exercises 
its oversight role to ensure that the tools Congress has given 
Federal agencies under the law are being used to safeguard 
tribal communities from being locked out of decisions involving 
their own people, their sacred sites.
    You have referenced the connection with the very deeply 
troubling reports of children's remains that are being 
identified at former Native American boarding school sites. 
While the protections afforded in NAGPRA may not be applicable 
in every instance, I do hope that this committee can have a 
discussion on how NAGPRA's already existing Federal framework 
may be one of the many Federal tools that we can choose to 
apply in order to correct a harmful period in Federal Indian 
policy.
    In Alaska, NAGPRA has played an important role in helping 
to repatriate human remains and funerary objects. Since 
NAGPRA's enactment, tribal communities and institutions in 
Alaska have been awarded over $6.9 million in Federal funds. 
These funds helped facilitate 155 consultation, documentation, 
and repatriation projects. The real-life impact of this Federal 
investment means that from 70 museums and Federal agencies 
located across the Country, 1,843 Native American individuals 
were repatriated and returned home to their Alaska Native 
communities.
    But there is much more to be done. The work is not 
finished. There are still 406 Alaska Native individuals who 
remain housed in 26 museums or Federal agencies pending 
consultation and notification prior to repatriation. So I would 
hope to hear today from our Federal witnesses about the status 
of those pending repatriations.
    And we absolutely need to be doing better across the 
Country. According to the Interior Department's own statistics, 
only 21 percent of museums subject to NAGPRA have repatriated 
all of the Native American human remains under their control.
    So I am looking forward to hearing about the 
Administration's objectives for any proposed changes to 
NAGPRA's implementing regulations and how this Committee can 
help ensure the success of this very important program. As part 
of any updates to the law, I expect the Administration to 
consider the unique structure associated with Alaska's tribal 
communities.
    I want to welcome all of our panelists today, but 
particularly my friend, Dr. Rosita Worl, President of Sealaska 
Heritage Institute. Dr. Worl is a highly respected and 
accomplished academic, researcher, and topologist, author, as 
they say, she does it all. She received her Ph.D. and her MS in 
anthropology from Harvard University. She has a BA from Alaska 
Methodist University. She also holds an honorary Doctor of 
Science from the University of Alaska Anchorage. She has served 
on the NAGPRA review committee for 13 years now, from 2000 to 
2013, including a term as chair of the review committee.
    So she is deeply, deeply steeped in this, as she is on so 
many issues, most notably the preservation of Native languages, 
and seeks to encourage me daily in reminding me of my 
responsibility to help share with the preservation of those 
languages.
    As Aanshawatk'i to you, Dr. Worl, know that I give you my 
sincere appreciation, and thank you. Thank you for being here.
    The Chairman. Thank you, Vice Chair Murkowski.
    It gives me pleasure to introduce the remaining witnesses. 
First, we will have Joy Beasley, the Associate Director of 
Cultural Resources, Partnerships, and Science at the National 
Park Service. Then Dr. Anna Maria Ortiz, Director of Natural 
Resources and Environment, USGAO. Then Carmen Hulu Lindsey, 
Chair of the Office of Hawaiian Affairs. And Dr. Valerie 
Grussing, Executive Director of the National Tribal Historic 
Preservation Officers Association.
    Ms. Beasley, please proceed with your testimony.

         STATEMENT OF JOY BEASLEY, ASSOCIATE DIRECTOR, 
        CULTURAL RESOURCES, PARTNERSHIPS, AND SCIENCE, 
         NATIONAL PARK SERVICE, U.S. DEPARTMENT OF THE 
                            INTERIOR

    Ms. Beasley. Chairman Schatz, Ranking Member Murkowski and 
members of the Committee, my name is Joy Beasley, and I am the 
Associate Director for Cultural Resources, Partnerships, and 
Science for the National Park Service.
    Before I offer my oral statement, I just want to very 
quickly wish Senator Lujan a swift recovery.
    Thank you for the opportunity to appear before you today to 
present the Department of the Interior's views on 
implementation of the Native American Graves Protection and 
Repatriation Act of 1990, known as NAGPRA. NAGPRA recognized 
that human remains of any ancestry must at all times be treated 
with dignity and respect. For over 30 years, NAGPRA has 
required the respectful return of Native American ancestors and 
cultural items to lineal descendants, Indian tribes and Native 
Hawaiian organizations.
    Implementation of NAGPRA is assigned to the Secretary of 
the Interior. Since 1990, the national NAGPRA program has been 
based in the National Park Service. The Secretary of the 
Interior has delegated NAGPRA responsibilities to the National 
Park Service, including publishing notices in the Federal 
Register, administering grants to tribes and museums, receiving 
and recording inventory and summaries, and investigating 
failures to comply.
    Since 1990, the National Park Service has published almost 
4,000 notices allowing for the repatriation of over 84,000 
Native American ancestral remains and over 1.5 million funerary 
objects. Since 1994, we have awarded nearly $54 million in 
grant funds to museums, Indian tribes, and Native Hawaiian 
organizations for consultation and repatriation. We have 
undertaken investigations that have resulted in many thousands 
of dollars in penalties.
    We also provide technical assistance to Indian tribes, 
Native Hawaiian organizations, museums and Federal agencies 
involved in repatriation or disposition. We provide direct 
training to over 2,000 participants annually, and we respond to 
thousands of individual inquiries by phone or email.
    The national NAGPRA program manager also serves as the 
designated Federal official for the NAGPRA review committee, a 
Federal advisory committee. The committee provides an annual 
report to Congress outlining progress made and any barriers 
encountered in implementing NAGPRA.
    The most recent report for 2020 and 2021 was finalized by 
the advisory committee at the end of November. The Department 
is preparing it for transmittal to Congress.
    While there have been many successes in implementing 
NAGPRA, the Department is aware that more work needs to be 
done. Since the passage of NAGPRA in 1990, less than half of 
the Native American ancestral remains in collections have been 
repatriated to their traditional caretakers. Over 117,000 
Native American individuals are still in museum and Federal 
agency collections, and 94 percent of those have not been 
culturally affiliated with any present-day Indian tribe or 
Native Hawaiian organization.
    Even in Alaska and Hawaii, where connections between 
ancestral remains and present-day people are well established, 
over 400 ancestors taken from Alaska and over 100 iwi kupuna 
taken from Hawaii are still in museum collections.
    The Department is also aware that some collections subject 
to NAGPRA remain unreported. Many Federal agencies are still 
trying to locate extensive collections in non-Federal 
repositories and museums are continuing to discover unknown or 
unreported collections that are subject to NAGPRA that should 
be returned to their traditional caretakers
    The Department is also aware that substantive updates to 
the NAGPRA regulations are long overdue. We recently prepared a 
draft proposed rule and invited consultation with Indian tribe 
and Native Hawaiian organizations to discuss the proposal. The 
goal of the revisions is to simplify and improve the regulatory 
process for repatriation by streamlining existing regulatory 
requirements, shifting excessively burdensome and complicated 
procedures, and clarifying timelines.
    The Department is currently working on incorporating the 
input we received during consultation, and expects to publish a 
proposed rule for public comment in early 2022. In the revised 
regulations, the Department is committed to emphasizing 
deference to Native American customs, traditions, and 
traditional knowledge wherever possible throughout the 
repatriation process.
    Chairman Schatz, Ranking Member Murkowski, and members of 
the committee, thank you for the opportunity to present the 
Department's views in NAGPRA implementation. I would be pleased 
to answer any questions you have.
    [The prepared statement of Ms. Beasley follows:]

    Prepared Statement of Joy Beasley, Associate Director, Cultural 
   Resources, Partnerships, and Science, National Park Service, U.S. 
                       Department of the Interior
    Chairman Schatz, Ranking Member Murkowski, and members of the 
Committee, my name is Joy Beasley and I serve as the Associate Director 
for Cultural Resources, Partnerships and Science in the National Park 
Service at the United States Department of the Interior (Department). 
Thank you for the opportunity to appear before you today to present the 
Department's views on the implementation of the Native American Graves 
Protection and Repatriation Act of 1990 (NAGPRA). For over 30 years, 
NAGPRA has required the respectful return of Native American ancestors 
and cultural items to lineal descendants, Indian Tribes, and Native 
Hawaiian organizations. Under NAGPRA, ancestral remains and cultural 
items are subject to repatriation by a museum or Federal agency or 
protection on Federal or Tribal land. NAGPRA recognized that human 
remains of any ancestry must at all times be treated with dignity and 
respect. NAGPRA provides for the resolution of rights to long-separated 
ancestors and objects to Indian Tribes and Native Hawaiian 
organizations.
    Implementation of NAGPRA is assigned to the Secretary of the 
Interior. Since 1990, the National NAGPRA Program has been based in the 
National Park Service. The Secretary of the Interior has delegated the 
following eight responsibilities to the Director of the National Park 
Service, who in turn delegated them to the Associate Director for 
Cultural Resources Partnerships and Science:

  Publish notices in the Federal Register for museums and 
        Federal agencies to provide due process to Indian Tribes and 
        Native Hawaiian organizations. We have published almost 4,000 
        notices, allowing for the repatriation of over 84,000 Native 
        American ancestral remains and over 1.5 million funerary 
        objects.

  Maintain and share data on NAGPRA compliance. We maintain 
        publicly available databases to ensure transparency of 
        information related to repatriation and disposition. Data is 
        provided in more user-friendly reports and data visualizations 
        to assist Indian Tribes and Native Hawaiian organizations in 
        making requests.

  Make Federal grant awards to museums, Indian Tribes, and 
        Native Hawaiian organizations for consultation and repatriation 
        under NAGPRA. The Department acknowledges and appreciates the 
        recent work of the Congress to increase grant funds to museums, 
        Indian Tribes, and Native Hawaiian organizations. Since 1994, 
        nearly $54 million in grant funds have been awarded. However, 
        we continue to receive more applications that meet the funding 
        criteria than we can support in in a given fiscal year.

  Investigate civil penalty allegations and assess fines on 
        museums that fail to comply with NAGPRA provisions. In total, 
        we have investigated 53 entities and found 20 museums have 
        failed to comply with NAGPRA. We have collected nearly $60,000 
        in penalties. The National Park Service recently hired a full-
        time investigator for the Program dedicated to conducting these 
        investigations.

  Provide staff support to the Native American Graves 
        Protection and Repatriation Review Committee, a Federal 
        Advisory Committee. The Committee provides an annual report to 
        Congress outlining progress made and any barriers that may have 
        been encountered in implementing NAGPRA. The most recent 
        report, covering 2020-2021, was finalized by the Advisory 
        Committee at the end of November of 2021. The Department is 
        preparing the report for transmittal to Congress in early 2022.

  Provide technical assistance for discoveries and excavations 
        on Federal and Tribal lands. To date, Federal agencies have 
        reported 214 notices of dispositions from Federal lands.

  Draft and promulgate implementing regulations. The Department 
        recently completed consultation with Indian Tribes and Native 
        Hawaiian organizations on possible revisions to the NAGPRA 
        regulations.

  Provide technical assistance to any party involved in 
        repatriation or disposition. Training is provided to upwards of 
        2,000 participants annually, although we are reaching even 
        larger audiences with remote video conferencing. The National 
        NAGPRA Program responds to thousands of individual inquiries by 
        phone or email annually.

    While there have been many successes in implementing NAGPRA as 
mentioned in the bullets above, the Department is aware that more work 
under NAGPRA needs to be done. Since the passage of NAGPRA in 1990, 
less than half of the Native American ancestral remains in collections 
have been repatriated to their traditional caretakers. Over 117,576 
Native American individuals are still in museum and Federal agency 
collections and 94 percent of those have not been culturally affiliated 
with any present-day Indian Tribe or Native Hawaiian organization. Even 
in Alaska and Hawai`i, where connections between ancestral remains and 
present-day people are well established, over 400 ancestors taken from 
Alaska and over 100 iwi kupuna taken from Hawai`i are still in museum 
collections. The Department is also aware that some collections subject 
to NAGPRA remain unreported. Many Federal agencies are still trying to 
locate extensive collections in non-Federal repositories in order to 
complete the NAGPRA compliance process. Likewise, museums are 
continuing to discover collections subject to NAGPRA that were unknown 
or unreported that should be returned to their traditional caretakers.
    In addition, the Department is aware that changes to the NAGPRA 
regulations are long overdue.
Regulations
    Since 2010, the Department has received repeated requests for 
substantive updates to the NAGPRA regulations. Based on community input 
and previous consultations, the Department prepared a draft proposed 
rule and, in July 2021, invited consultation with Indian Tribes and 
Native Hawaiian organizations to discuss the proposal. The Department 
held 4 consultation sessions and received 71 written comments from 
Indian Tribes and Native Hawaiian organizations.
    The goal of any revised regulations, as discussed during the 
consultation sessions, is to simplify and improve the regulatory 
process for repatriation; advance the Administration's goals; and 
streamline existing regulatory requirements by simplifying excessively 
burdensome and complicated requirements, and clarifying timelines. For 
example, proposed revisions to the regulations could require museums 
and Federal agencies to update inventories of ancestral remains and 
move the regulatory process forward, without first requiring a request 
from Indian Tribes or Native Hawaiian organizations.
    In addition, the proposed revisions to the regulations could 
require museums that have custody of a collection to report the 
collection to the appropriate Federal agency or to the manager of the 
National NAGPRA Program. This will allow for greater awareness and 
transparency of collections that are subject to NAGPRA and its 
repatriation provisions.
    The Department is currently working on incorporating the input it 
received during consultation with Indian Tribes and Native Hawaiian 
organizations and expects to publish a proposed rule for public comment 
in early 2022. The Department is committed to emphasizing in the 
revised regulations deference to the customs, traditions, and Native 
American traditional knowledge whenever possible in the repatriation 
process.
    Chairman Schatz, Ranking Member Murkowski, and members of the 
Committee, thank you for the opportunity to present the Department's 
views on NAGPRA implementation. I would be pleased to answer any 
questions that you may have.

    The Chairman. Thank you, Director Beasley.
    Dr. Anna Maria Ortiz, please proceed.

STATEMENT OF DR. ANNA MARIA ORTIZ, DIRECTOR, NATURAL RESOURCES 
               AND ENVIRONMENT, U.S. GOVERNMENT 
                     ACCOUNTABILITY OFFICE

    Dr. Ortiz. Mr. Chairman, Senator Murkowski, and members of 
the Committee, thank you for having me here today.
    Before I begin, I would also like to extend GAO's wishes 
for Senator Lujan's recovery.
    During creation and expansion of the United States, the 
Federal Government forcibly relocated countless Native 
Americans from their homelands, separating them from the bodies 
of their ancestors and from sacred objects central to their 
cultures. Over time, as archaeologists, developers and others 
unearthed objects from indigenous cultures throughout the 
United States, human remains, funerary items, and other objects 
sacred to American Indians, Alaska Natives and Native Hawaiians 
were disturbed, destroyed, stolen, or relocated to museums or 
private collections.
    The Native American Graves Protection and Repatriation Act 
of 1990, NAGPRA, was an important step in addressing the 
hurtful and destructive impact of our Country's development. In 
its broadest sense, NAGPRA aims to promote greater 
understanding between Federal agencies, museums, Indian tribes, 
including Alaska Native villages, and Native Hawaiian 
organizations. Specifically, NAGPRA obligates museums and 
agencies to identify the Native American human remains and 
certain cultural resources in their holdings, and to work to 
establish their cultural affiliation as the first step in the 
process to help return these items to their traditional 
keepers.
    NAGPRA also requires that Federal agencies consult with 
appropriate tribes and Native Hawaiian organizations prior to 
excavating Federal or tribal lands and upon any inadvertent 
discoveries. Lastly, NAGPRA criminalizes the sale, purchase, 
and use for profit of any cultural items obtained knowingly in 
violation of the Act.
    My testimony today reviews major provisions of NAGPRA and 
some of the progress that Federal agencies have made since the 
GAO last reviewed its implementation in 2010. For example, as a 
result of agencies' implementation of GAO's recommendations, 
Congress and the public can now access national data on museum 
inventories and specific items available for repatriation.
    My testimony also highlights recent GAO findings on issues 
central to NAGPRA's implementation. First and foremost is the 
need for effective Federal consultation with tribes. Museums 
and agencies that fail to consult effectively may have 
difficulty establishing the tribal affiliation of sacred items 
or repatriating culturally unidentifiable items to interested 
tribes and Native Hawaiian organizations.
    GAO also found that Federal agencies encounter challenges 
in trying to protect Native American cultural resources on 
Federal and tribal lands, such as resource constraints and 
competing agency priorities. Further, agency progress in 
implementing GAO's recommendations from recent reports may help 
counter looting and trafficking of Native American cultural 
resources and could help with the repatriation of more than 
116,000 remains of ancestors still held in museum and agency 
collections.
    In the 30 years since NAGPRA's enactment, we have grown to 
appreciate the challenges Federal agencies have faced in 
implementing the law as well as the importance of implementing 
it effectively. NAGPRA embodies the unique relationship the 
United States has with Native Americans. Its consultation 
requirements underscore the political sovereignty of tribal 
cultures that predate our nation's. Its legal provisions to 
protect Native American cultural resources are consistent with 
the United States trust responsibility.
    Finally, in requiring repatriation of human remains, sacred 
objects, and objects of cultural patrimony to descendants and 
culturally affiliated tribes and Native Hawaiian organizations, 
NAGPRA seeks to redress a small portion of the many wrongs that 
Federal polices have caused over time.
    This concludes my oral statement. I welcome any questions 
you may have.
    [The prepared statement of Ms. Ortiz follows:]

Prepared Statement of Dr. Anna Maria Ortiz, Director, Natural Resources 
         and Environment, U.S. Government Accountability Office
    Chairman Schatz, Vice Chairman Murkowski, and Members of the 
Committee:
    Thank you for the opportunity to discuss examples from our prior 
reports regarding the Native American Graves Protection and 
Repatriation Act (NAGPRA). \1\ Federal agencies and museums have 
acquired Native American human remains, funerary objects, sacred 
objects, and objects of cultural patrimony over hundreds of years. When 
NAGPRA was enacted on November 16, 1990, it was estimated that federal 
agencies and museums had tens of thousands of such items in their 
historical collections.
---------------------------------------------------------------------------
    \1\ Pub. L. No. 101-601, 104 Stat. 3048-58 (1990) (codified as 
amended at 25 U.S.C.   3001-3013); 18 U.S.C.  1170. The implementing 
regulations for the act are at 43 C.F.R. pt. 10.
---------------------------------------------------------------------------
    NAGPRA reflects the unique relationship between the federal 
government and Indian tribes and Native Hawaiian organizations. \2\ 
Among other things, NAGPRA requires federal agencies and museums to 
return certain Native American unassociated funerary objects, sacred 
objects, or objects of cultural patrimony unless the museum or federal 
agency can provide that it has a right of possession to the objects. 
\3\ A Senate committee report that preceded the final version of NAGPRA 
and informed the drafting of the act stated that human remains ``must 
at all times be treated with dignity and respect,'' and that the 
legislation would encourage a continuing dialogue between museums and 
Indian tribes and Native Hawaiian organizations and will promote a 
greater understanding between the groups. \4\
---------------------------------------------------------------------------
    \2\ 25 U.S.C.  3010. As Congress outlined in the Indian Trust 
Asset Reform Act, ``through treaties, statutes, and historical 
relations with Indian tribes, the United States has undertaken a unique 
trust responsibility to protect and support Indian tribes and 
Indians.'' Pub. L. No. 114-178,  101(3) (2016) (codified at 25 U.S.C. 
 5601(3)). The act also notes that historic federal-tribal relations 
and understandings have benefited the people of the United States for 
centuries and established ``enduring and enforceable [f]ederal 
obligations to which the national honor has been committed.'' Pub. L. 
No. 114-178,  101(5) (2016) (codified at 25 U.S.C.  5601(5)).
    \3\ 25 U.S.C.  3005(c). Right of possession means possession 
obtained with the voluntary consent of an individual or group that had 
authority of alienation. 25 U.S.C.  3001(13). The original acquisition 
of a Native American unassociated funerary object, sacred object or 
object of cultural patrimony from an Indian tribe or Native Hawaiian 
organization with the voluntary consent of an individual or group with 
authority to alienate such object is deemed to give right of possession 
of that object, unless that would result in a Fifth Amendment taking by 
the United States.
    \4\ S. Rep. No. 101-473, at 4 (1990).
---------------------------------------------------------------------------
    Some federal agencies, such as the Department of the Interior's 
(Interior) National Park Service, acquired their collections of Native 
American cultural items through archeological excavations intended to 
advance scientific knowledge and preserve cultural items. Others, such 
as the U.S. Army Corps of Engineers and the Tennessee Valley Authority, 
have made discoveries when pursuing construction projects that are part 
of their missions. In addition, according to federal agency officials 
and representatives of tribal associations that we interviewed, Native 
American cultural items have a long history of being stolen from 
federal and tribal lands and added to private or institutional 
collections or sold for profit. This practice may involve disturbing or 
destroying graves, ceremonial sites, and archeological sites that have 
historical, cultural, and scientific importance.
    In several previously issued reports, we found that federal 
agencies could improve the implementation of NAGPRA, better protect 
Native American cultural items, and take additional actions to 
facilitate consultation with tribes on infrastructure projects, which 
may affect tribes' cultural resources, such as sacred sites and burial 
sites. \5\
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    \5\ GAO, Native American Cultural Resources: Improved Information 
Could Enhance Agencies' Efforts to Analyze and Respond to Risks of 
Theft and Damage, GAO-21-110 (Washington, D.C.: Mar. 4, 2021); Native 
American Issues: Examples of Certain Federal Requirements That Apply to 
Cultural Resources and Factors That Impact Tribal Consultation, GAO-20-
466T (Washington, D.C.: Feb. 26, 2020); Tribal Consultation: Additional 
Federal Actions Needed for Infrastructure Projects, GAO-19-22 
(Washington, D.C.: Mar. 20, 2019); Native American Cultural Property: 
Additional Agency Actions Needed to Assist Tribes with Repatriating 
Items from Overseas Auctions, GAO-18-537 (Washington, D.C.: Aug. 6, 
2018); and Native American Graves Protection and Repatriation Act: 
After Almost 20 Years, Key Federal Agencies Still Have Not Fully 
Complied with the Act, GAO-10-768 (Washington, D.C.: July 28, 2010).
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    This testimony provides information on (1) federal agencies' 
efforts to implement NAGPRA over the last 30 years; and (2) challenges 
related to the implementation and enforcement of NAGPRA, such as those 
identified in our prior reports and expressed by Indian tribes and 
Native American advocacy organizations. This testimony is based on 
reports that we issued from July 2010 through March 2021. These reports 
examined NAGPRA and other federal laws related to protecting Native 
American cultural items, as well as issues related to federal 
consultation with Indian tribes. This testimony also includes 
information about the consultation requirements under NAGPRA.
    In conducting our previously issued work, we reviewed relevant 
federal laws, regulations, and policies; reviewed agency documentation; 
reviewed oral and written comments that tribes submitted to several 
federal agencies regarding NAGPRA implementation; and interviewed 
tribal and federal officials. More detailed information on our 
objectives, scope and methodology for that work can be found in the 
issued reports.
    To update information on federal progress since our reports were 
issued, we reviewed the status of recommendations we made and examined 
federal reports with information on NAGPRA implementation. We also 
reviewed comments from tribal representatives on Interior's draft 
proposed revisions to NAGPRA regulations.
    We conducted the work on which this statement is based in 
accordance with generally accepted government auditing standards. Those 
standards require that we plan and perform the audit to obtain 
sufficient, appropriate evidence to provide a reasonable basis for our 
findings and conclusions based on our audit objectives. We believe that 
the evidence obtained provides a reasonable basis for our findings and 
conclusions based on our audit objectives.
Background
    NAGPRA requires federal agencies and museums \6\ to (1) identify 
the Native American human remains, funerary objects, sacred objects, 
and objects of cultural patrimony in their possession; \7\ (2) try to 
determine whether remains and objects or artifacts in their possession 
have a cultural affiliation with a present-day Indian tribe or Native 
Hawaiian organization; \8\ and (3) generally repatriate any culturally 
affiliated items to the applicable Indian tribe(s) or Native Hawaiian 
organization(s) under the terms and conditions prescribed in the act. 
\9\ NAGPRA applies to Native American cultural items, which the law 
defines as human remains, funerary objects, sacred objects, and objects 
of cultural patrimony. \10\ Native American is defined as meaning of, 
or relating to, a tribe, people, or culture that is indigenous to the 
United States. \11\
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    \6\ Museum means any institution or state or local government 
agency (including institutions of higher learning) that receives 
federal funds and has possession of, or control over, Native American 
cultural items. Such term does not include the Smithsonian Institution 
and or any other federal agency. 25 U.S.C.  3001(8).
    \7\ Native American means of, or relating to, a tribe, people, or 
culture that is indigenous to the United States. 25 U.S.C.  3001(9).
    \8\ ''Indian tribe'' means any tribe, band, nation, or other 
organized group or community of Indians, including any Alaska Native 
village (as defined in, or established pursuant to, the Alaska Native 
Claims Settlement Act) which is recognized as eligible for the special 
programs and services provided by the United States to Indians because 
of their status as Indians. 25 U.S.C.  3001(7). ``Native Hawaiian 
organization'' means any organization which (1) serves and represents 
the interests of Native Hawaiians, (2) has as a primary and stated 
purpose the provision of services to Native Hawaiians, and (3) has 
expertise in Native Hawaiian affairs, and shall include the Office of 
Hawaiian Affairs and Hui Malama I Na Kupuna O Hawai'i Nei. 25 U.S.C.  
3001(11).
    \9\ NAGPRA requires repatriation to lineal descendants under 
certain circumstances, for example when a direct lineal descendant of 
an individual who owned a sacred object requests repatriation. In this 
report, we refer to repatriation of culturally affiliated human remains 
and objects to Indian tribes and Native Hawaiian organizations but 
intend that reference to include lineal descendants when applicable.
    \10\ 25 U.S.C.  3001(3). Funerary objects include associated 
funerary objects and unassociated funerary objects. Associated funerary 
objects are objects that, as a part of the death rite or ceremony of a 
culture, are reasonably believed to have been placed with individual 
human remains either at the time of death or later, and both the human 
remains and associated objects are presently in the possession or 
control of a federal agency or museum, except that other items 
exclusively made for burial purposes or to contain human remains shall 
be considered as associated funerary objects. 25 U.S.C.  3001(3)(A). 
Unassociated funerary objects are objects that, as a part of the death 
rite or ceremony of a culture, are reasonably believed to have been 
placed with the individual human remains either at the time of death or 
later, where the remains are not in the possession or control of the 
federal agency or museum and the objects can be identified by a 
preponderance of the evidence as related to specific individuals or 
families or to known human remains or, by a preponderance of the 
evidence, as having been removed from a specific burial site of an 
individual culturally affiliated with a particular Indian tribe. 25 
U.S.C.  3001(3)(B).
    \11\ 25 U.S.C.  3001(9).
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    NAGPRA and its implementing regulations contain provisions 
governing Native American cultural items controlled or possessed by 
federal agencies and museums, intentional excavations and inadvertent 
discovery of Native American cultural items on federal \12\ or tribal 
land, \13\ and a criminal prohibition. Table 1 summarizes these 
provisions.
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    \12\ Federal land is any land other than tribal lands which are 
controlled or owned by the United States, including lands selected by 
but not yet conveyed to Alaska Native Corporations and groups organized 
pursuant to the Alaska Native Claims Settlement Act of 1971. 25 U.S.C. 
 3001(5).
    \13\ Tribal land is all lands within the boundaries of any Indian 
reservation; all dependent Indian communities; and any lands 
administered for the benefit of Native Hawaiians pursuant to the 
Hawaiian Homes Commission Act, 1920, and section 4 of Public Law 86-3. 
25 U.S.C.  3001(15).

 Table 1: Summary of Provisions in the Native American Graves Protection
     and Repatriation Act (NAGPRA) and Its Implementing Regulations
------------------------------------------------------------------------
     Type of provision                         Summary
------------------------------------------------------------------------
Collections                  NAGPRA requires federal agencies and
                              museums--defined as any institution or
                              state or local government agency that
                              receives federal funds--in possession of,
                              or control over, Native American cultural
                              items to identify those items; try to
                              determine if a cultural affiliation exists
                              with a present-day Indian tribe or Native
                              Hawaiian organization; and generally
                              repatriate the culturally affiliated items
                              to the applicable tribe or organization
                              under the terms and conditions specified
                              in the act. For human remains that federal
                              agencies and museums cannot culturally
                              affiliate, NAGPRA regulations require
                              museums and federal agencies to consult
                              with tribes or Native Hawaiian
                              organizations that request the return of
                              the remains and with federally recognized
                              tribe and Native Hawaiian organizations
                              from whose tribal or aboriginal lands the
                              remains were removed before offering to
                              transfer control of the remains.
Intentional excavation       NAGPRA prohibits the intentional removal
                              from, or excavation of, Native American
                              cultural items from federal or tribal
                              lands unless a permit has been issued, the
                              appropriate Indian tribe or Native
                              Hawaiian organization has been consulted
                              with, and the tribe or organization
                              consents to excavation or removal of the
                              items from tribal land. NAGPRA regulations
                              establish requirements for these
                              consultations.
Inadvertent discovery        Since its enactment, NAGPRA has required
                              any persons who know, or has reason to
                              know, that they have discovered Native
                              American cultural items on federal or
                              tribal lands to notify the federal land
                              management agency responsible for the land
                              or the appropriate Indian tribe or Native
                              Hawaiian organization, respectively.(a)
                              NAGPRA regulations establish requirements
                              for federal agencies to consult with
                              Indian tribes and Native Hawaiian
                              organizations regarding these discoveries.
                              If the discovery occurred in connection
                              with an ongoing activity, such as
                              construction, mining, or logging, the
                              NAGPRA regulations require the activity in
                              the area of the discovery to cease.
Criminal                     NAGPRA prohibits the sale, purchase, use
                              for profit, or transport for sale or
                              profit of (1) Native American human
                              remains without the right of possession(b)
                              as provided in the act and (2) any Native
                              American cultural items obtained in
                              violation of the act. The act and imposes
                              criminal penalties for knowingly violating
                              this prohibition.
------------------------------------------------------------------------

        Source: 25 U.S.C.   3001-3013; 18 U.S.C.  1170; 43 C.F.R. 
        pt. 10. I GAO-22-105685
        (a) For federal land selected by but not yet conveyed to Alaska 
        Native Corporations and groups, notification must be provided 
        to both the federal land management agency and the appropriate 
        corporation or group. 25 U.S.C.  3002(d)(1).
        (b)Right of possession means possession obtained with the 
        voluntary consent of an individual or group that had authority 
        of alienation. The original acquisition of Native American 
        human remains and associated funerary objects which were 
        excavated, exhumed, or otherwise obtained with full knowledge 
        and consent of the next of kin or the official governing body 
        of the appropriate culturally affiliated Indian tribe or Native 
        Hawaiian organization is deemed to give right of possession to 
        those remains. 25 U.S.C.  3001(13).

    The National NAGPRA Program, within Interior's National Park 
Service, facilitates the government-wide implementation of NAGPRA. All 
federal agencies with collections, federal land, or both (including the 
Department of the Interior's Bureau of Indian Affairs and the 
Department of Agriculture's Forest Service) are also responsible for 
implementing NAGPRA. The Department of Justice is responsible for 
enforcement of NAGPRA's criminal provision, and the Secretary of the 
Interior has authority to assess civil penalties against a museum for 
failure to comply with NAGPRA. \14\
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    \14\ For example, the Department of Justice may prosecute someone 
for knowingly transporting a sacred object that was obtained from 
tribal lands in violation of NAGPRA and the Secretary of the Interior 
may assess a penalty against a museum for failure to develop an 
inventory of the human remains and associated funerary objects in its 
possession or control.
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    In addition, Executive Order 13175, issued in November 2000, calls 
for federal agencies to have an accountable process to ensure 
meaningful and timely input by tribal officials in the development of 
regulatory policies that have tribal implications. \15\ To implement 
Executive Order 13175, some agencies have developed agency-specific 
policies and procedures for tribal consultation. \16\ More recently, in 
a January 2021 Memorandum on Tribal Consultation and Strengthening 
Nation-to-Nation Relationships, the President directed every executive 
department and agency to develop a detailed plan of actions to 
implement the policies and directives of Executive Order 13175, after 
consulting with tribal nations and tribal officials. \17\ Since then, 
80 agencies and offices have hosted tribal consultation sessions to 
discuss their consultation policies and practices and they issued 
action plans to improve these efforts, including the Office of 
Management and Budget, which had not previously consulted with tribes 
on its activities.
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    \15\ Executive Order 13175, Consultation and Coordination with 
Indian Tribal Governments,  5(a), 65 Fed. Reg. 67249, 67250 (Nov. 9, 
2000). The order defines ``policies that have tribal implications'' as 
``regulations, legislative comments or proposed legislation, and other 
policy statements or actions that have substantial direct effects on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes.''
    \16\ We have not reviewed whether agencies' tribal consultation 
policies apply to their efforts to implement NAGPRA.
    \17\ Presidential Memorandum, Tribal Consultation and Strengthening 
Nation-to-Nation Relationships, 86 Fed. Reg. 7491 (Jan. 29, 2021). 
Agencies also obtained feedback from tribes on federal consultation 
efforts in response to a 2009 presidential memorandum. Presidential 
Memorandum on Tribal Consultation, 2009 Daily Comp. Pres. Docs. 887 
(Nov. 5, 2009).
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Federal Agencies Have Made Progress Implementing NAGPRA
    In July 2010, we reported on the status of NAGPRA implementation, 
including federal agencies' compliance with NAGPRA's requirements for 
their historical collections; actions taken by the National NAGPRA 
Program to fulfill its responsibilities under the law; and federal 
agencies' reporting of their repatriation of Native American human 
remains and objects. \18\ At that time, we found that (1) federal 
agencies had not yet fully complied with all of the requirements of 
NAGPRA; (2) the National NAGPRA Program had taken several actions to 
implement the act's requirements, but in some cases, had not 
effectively carried out its responsibilities; and (3) the key agencies 
had repatriated many NAGPRA items, but repatriation activity had 
generally not been tracked or reported government-wide.
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    \18\ GAO-10-768.
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    That report included 14 recommendations aimed at improving NAGPRA 
implementation, clarifying which entities are eligible under NAGPRA, 
and providing policymakers with information to assess the overall 
effectiveness of the act and to provide Indian tribes and Native 
Hawaiian organizations readily accessible information on items that are 
available for repatriation, all of which have been implemented. One of 
these recommendations was that the agencies report their repatriation 
data to the National NAGPRA Program on a regular basis, and that the 
National NAGPRA Program make that information readily available to 
Indian tribes and Native Hawaiian organizations, as well as publish the 
information in its annual report to Congress.
    As a result of the agencies' and the National NAGPRA Program's 
implementation of this recommendation, annual data on the status of 
federal agencies' repatriation progress are readily available. For 
example, according to data from National NAGPRA Program's fiscal year 
2020 report, from fiscal year 1990 through fiscal year 2020, 91.5 
percent of culturally affiliated human remains have completed the 
NAGPRA process and over 1.7 million associated funerary objects have 
been transferred with human remains. In addition, $52 million in NAGPRA 
grants have been awarded, including $1.9 million in fiscal year 2020, 
which was a $250,000 increase from fiscal year 2019 grants awarded. 
\19\
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    \19\ NAGPRA authorizes the Secretary of the Interior to award two 
types of grants: (1) grants to Indian tribes and Native Hawaiian 
organizations for the purpose of assisting them in the repatriation of 
Native American cultural items and (2) grants to museums for the 
purpose of assisting the museums in developing inventories and 
summaries of Native American cultural items in their possession or 
control. 25 U.S.C.  3008.
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    According to the National NAGPRA Program's fiscal year 2020 report, 
however, more work is needed, particularly with respect to the human 
remains of more than 116,000 Native American individuals still in 
collections, of which 95 percent have not been culturally affiliated 
with any present-day Indian tribe or Native Hawaiian organization. The 
report notes that cultural affiliation studies and in-depth 
consultations could resolve the rights to many of these individuals. In 
addition, since fiscal year 1990, the program has collected $59,111 in 
civil penalties for failures to comply with NAGPRA.
Challenges Remain with NAGPRA
    Although there has been progress in the implementation of NAGPRA 
since its enactment 30 years ago, concerns expressed by tribes and 
tribal organizations and our past work indicate that several challenges 
remain. These issues include challenges with consulting with tribes and 
tribal organizations, better protecting cultural items, and addressing 
challenges in the limited scope of the law and enforcement.
Challenges with Implementing Consultation Requirements under NAGPRA
    Tribes and tribal organizations have expressed concerns about how 
some federal agencies are implementing consultation requirements under 
NAGPRA. In August 2021, Interior held consultation sessions with 
tribes, tribal organizations, and Native Hawaiian organizations to 
obtain their input on its draft proposed revisions to the NAGPRA 
regulations. Interior noted in its August 2021 consultation report that 
the draft proposed revised regulations are designed to, among other 
things, streamline and improve its regulatory process for repatriating 
cultural items to Native Americans and Native Hawaiian organizations. 
Interior also noted in the consultation report that it plans to review 
the comments it received.
    In written comments on Interior's draft proposal, in September 
2021, the Association on American Indian Affairs said a single round of 
consultation is insufficient to meaningfully incorporate tribal and 
Native Hawaiian organization views because the reformation needed is so 
comprehensive and so different from the draft proposed revisions. In 
August 2021, several tribes also provided comments to Interior on how 
its draft proposed regulations could facilitate meaningful 
consultations and lead to respectful repatriation. For example,

  One tribal official commented that the current definition of 
        consultation in Interior's draft proposed regulations is 
        insufficient and prefers the definitions of consultation used 
        in the regulations to implement section 106 of the National 
        Historic Preservation Act because it includes seeking, 
        discussing, and coming to an agreement. \20\
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    \20\ The regulations implementing section 106 of the National 
Historic Preservation Act define consultation to mean the process of 
seeking, discussing, and considering the views of other participants, 
and, where feasible, seeking agreement with them regarding matters 
arising in the section 106 process. 36 C.F.R.  800.16(f). Under 
section 106 of the National Historic Preservation Act and its 
implementing regulations, federal agencies are to take into account the 
effects of their undertakings on historic properties through 
consultation between agency officials, Indian tribes, and others. Pub. 
L. No. 89-665,  106, 80 Stat. 915, 917 (1966) (codified as amended at 
54 U.S.C.  306108); 36 C.F.R. pt. 800.

  A leader of a Native Hawaiian organization said that the 
        revisions to the regulations should recognize that Native 
---------------------------------------------------------------------------
        Hawaiians are the experts of their lands.

    NAGPRA regulations also prohibit intentional excavation of Native 
American cultural items from federal lands without, among other things, 
consultation with the appropriate Indian tribe or Native Hawaiian 
organization. In addition, NAGPRA regulations require consultation with 
Indian tribes or Native Hawaiian organizations when Native American 
cultural items are inadvertently discovered on federal lands. \21\ 
According to the National Congress of American Indians, federal 
consultation with tribes can help to minimize potential negative 
effects of federal infrastructure projects on tribes' natural resources 
and cultural items, which may include cultural items subject to NAGPRA. 
In 2020, we reported that effective consultation is a key tenet of the 
government-to-government relationship the United States has with Indian 
tribes, which is based on tribal sovereignty. \22\ We also noted that 
failure to consult, or to consult effectively, sows mistrust; risks 
exposing the United States to costly litigation; and may result in 
irrevocable damage to Native American cultural items.
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    \21\ Specifically, federal land management agencies are required to 
consult with (1) Indian tribes on whose aboriginal lands the planned 
activity will occur or where the inadvertent discovery has been made; 
(2) Indian tribes and Native Hawaiian organizations that are, or are 
likely to be, culturally affiliated with the Native American cultural 
items; and (3) Indian tribes and Native Hawaiian organizations that 
have a demonstrated cultural relationship with the cultural items. 43 
C.F.R.  10.4(d)(1)(iv). Agencies must initiate this consultation as 
soon as possible but no later than 3 working days after receipt of 
written confirmation of the inadvertent discovery of the items by the 
person who made the discovery. If the inadvertent discovery occurred in 
connection with an on-going activity on federal or tribal lands, the 
person who makes the discovery must stop the activity in the area of 
the inadvertent discovery and make a reasonable effort to protect the 
Native American cultural items inadvertently discovered. 43 C.F.R.  
10.4(c).
    \22\ GAO-20-466T.
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    In a 2019 report and 2020 testimony about federal agencies' 
consultations with Indian tribes for federal infrastructure projects 
and sacred objects, we reported that several key factors hamper 
effective tribal consultations. \23\ These key factors included 
agencies initiating consultation late in project development stages and 
not respecting tribal sovereignty or the government-to-government 
relationship between federally recognized tribes and the federal 
government. In addition, we also reported that federal agencies faced 
challenges in obtaining and maintaining accurate contact information 
for tribes, which is needed to notify tribes of consultation 
opportunities. To address these issues, in March 2019, we made one 
matter for congressional consideration and 22 recommendations including 
that federal agencies take steps to improve their tribal consultation 
process. As of January 2022, we had closed 11 of the 22 recommendations 
as implemented and 11 remain open.
---------------------------------------------------------------------------
    \23\ GAO-19-22 and GAO-20-466T.
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Challenges with Better Protecting Cultural Items
    Some Native American cultural items have a direct cultural link to 
modern-day Native American communities who live or whose ancestors 
lived on the lands. While cultural and religious practices vary, tribes 
may consider some items at these sites to be sacred or have other 
profound significance. They consider the theft or damage of these items 
to be detrimental to the preservation of their culture and traditions.
    NAGPRA prohibits the theft and damage of Native American cultural 
items, such as sacred objects, on federal and tribal lands. Federal 
agencies also help protect these items by attempting to prevent theft 
and damage and by investigating such crimes. In 2021, we reported that 
seven federal agencies have taken a variety of approaches to help 
prevent and detect the theft and damage of Native American cultural 
items on federal and tribal lands that may contain such items. \24\ 
These agencies' approaches included conducting public awareness 
programs, installing physical protection measures and monitoring sites 
with electronic surveillance equipment.
---------------------------------------------------------------------------
    \24\ GAO-21-110.
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    However, resource constraints and limitations with data to support 
decisionmaking hamper some federal agencies' efforts to prevent, 
investigate, and prosecute incidents of theft and damage to Native 
American cultural items. In March 2021, we made seven recommendations 
that each agency take steps to identify and obtain information to 
enhance their ability to analyze and respond to risks to Native 
American cultural items. As of January 2022, these seven 
recommendations remained open.
Challenges with NAGPRA's Scope and Enforcement
    Limitations in the prohibitions on theft and trafficking of Native 
American cultural items pose another challenge to protecting Native 
American cultural items. We reported in 2018 that although several 
federal laws address the theft and trafficking of Native American 
cultural items, these laws are limited in scope and only apply to the 
theft or trafficking of certain items. \25\ In August 2018, we made 12 
recommendations, three to each of the four agencies, including a 
recommendation that the agencies assess the U.S. legal framework 
governing the export, theft, and trafficking of Native American 
cultural items. The agencies generally agreed with our recommendations. 
\26\ As of January 2022, we had closed two of the 12 recommendations as 
implemented and 10 remain open.
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    \25\ GAO-18-537.
    \26\ The Department of Justice disagreed with the recommendation to 
assess the U.S. legal framework. We believe this recommendation is 
still valid, as discussed in the report.
---------------------------------------------------------------------------
    For example, the criminal prohibition in NAGPRA applies only to 
Native American cultural items obtained in violation of the act. This 
criminal prohibition would apply to a person selling a sacred object 
that was obtained from federal land after NAGPRA's enactment without 
meeting the requirements for intentional excavation but would not apply 
to a person selling sacred objects they excavated from their privately 
owned land, even if that land is located within a tribe's ancestral 
homelands.
    Moreover, in situations where the theft or trafficking of an item 
falls within the scope of NAGPRA, agency and tribal officials said it 
can be challenging to provide sufficient evidence to prove the 
violation in court. For example, to prove a NAGPRA violation, there 
must be evidence that the item in question was removed from federal or 
tribal land and was taken after NAGPRA was enacted. Further, as we 
reported in 2021, \27\ according to an FBI official, it can be less 
burdensome to prove a violation of the Bald and Golden Eagle Protection 
Act, than to prove a violation of NAGPRA when a Native American 
cultural item includes bald eagle feathers. \28\
---------------------------------------------------------------------------
    \27\ GAO-21-110.
    \28\ 16 U.S.C.  668(a). The Bald and Golden Eagle Protection Act 
prohibits, among other things, possession of eagle feathers unless 
allowed by permit.
---------------------------------------------------------------------------
    In a recent consultation with Interior on draft proposed revisions 
of NAGPRA regulations, one tribal official noted that the NAGPRA 
regulations do not require a permit for intentional excavation of 
private lands within the boundaries of an Indian reservation even 
though those are tribal lands subject to NAGPRA. Another tribal 
official noted that it does not apply when private collectors hold 
objects that would be subject to repatriation under NAGPRA if they were 
held by museums or federal agencies.
    In conclusion, during the 30 years since the passage of NAGPRA, 
federal agencies have made some progress in addressing the act's 
requirements, including repatriating over 1.7 million associated 
funerary objects with human remains, according to the National NAGPRA 
Program's fiscal year 2020 annual report. However, as we have 
previously reported and as tribes and tribal organizations have noted, 
agencies continue to face challenges in implementing and enforcing 
NAGPRA.
    Such challenges point to the value of further examining how NAGPRA 
is being implemented, including efforts to consult with tribes and 
Native Hawaiian organizations, better protect cultural items, and 
address challenges with the law's scope and enforcement. Overall, 
NAGPRA was a significant step forward in recognizing the dignity of 
Native American people and supporting tribes' political sovereignty. 
However, while agencies have made progress in repatriating remains to 
culturally affiliated tribes, human remains of more than 116,000 
individuals are still in federal possession and have not yet been 
culturally linked to a present day tribe or Native Hawaiian 
organization. By implementing open recommendations from our prior work, 
federal agencies will continue to make progress in their efforts to 
improve tribal consultations and protect Native American cultural 
items.
    Chairman Schatz, Vice Chairman Murkowski, and Members of the 
Committee, this completes my prepared statement. I would be pleased to 
respond to any questions that you may have at this time.

    The Chairman. Thank you very much.
    Next, we are pleased to welcome, from Hawaii, Carmen Hulu 
Lindsey, the Chair of the Office of Hawaiian Affairs.

STATEMENT OF CARMEN ``HULU'' LINDSEY, CHAIR, OFFICE OF HAWAIIAN 
                            AFFAIRS

    Ms. Lindsey. Mahalo, Chair. I would also like to wish 
Senator Lujan a speedy recovery.
    [Greeting in Native tongue], much aloha to Chair Schatz, to 
Vice Chair Murkowski, and to the members of the Senate 
Committee on Indian Affairs. My name is Carmen Hulu Lindsey, 
and I am the elected trustee from the island of Maui and the 
Chairperson of the Board of Trustees for the Office of Hawaiian 
Affairs.
    Our mission is to better the conditions of Native 
Hawaiians. I am here today to speak about the role the Native 
American Graves Protection and Repatriation Act, NAGPRA, has 
had on Native Hawaiians. Iwi, our bones, and their care and 
protection holds an elevated status in our Hawaiian culture, as 
they have for thousands of years.
    Iwi, our most cherished possession, the late Mary Kawena 
Pukui, a cultural icon and renowned Hawaiian scholar, has 
taught us the importance. We identify each other by literally 
the bone. Not only do the iwi possess the spiritual power and 
essence of the individual, they are also our direct connection 
to our ancestors for communication and guidance. For we do not 
bury our dead, we kanu, or plant them back into the earth from 
whence they came, to continue to nourish, heal, and guide 
future generations.
    This critical cycle has been disrupted due to the mass 
interment and desecration of our ancestors, especially in the 
last century of unfettered development in our island home. When 
NAGPRA was enacted in 1990, here in Hawaii, the State of Hawaii 
passed human rights legislation to provide for the care, 
management and protection of unmarked burial sites in the 
islands, of which there are tens of thousands primarily 
comprised of our Native Hawaiian ancestors.
    This legislation prompted by the deliberate and intentional 
excavation of the resting places of our ancestors after which 
they would not only sit in boxes on museum shelves, but would 
also be sent all over the world for collection and study. Just 
over 30 years ago, the mass excavation of the sacred remains of 
over 1,110 men, women, children, and infants out of their final 
resting place occurred at Honokahua on my island home of Maui, 
to build a large hotel resort. At the same time, hundreds of 
remains were being disinterred at another large resort in 
another area of Maui. Public outcry led to changes in our laws.
    While we continue to address ongoing disinterment and the 
desecration of our ancestral burial sites in the islands, it 
was NAGPRA which allowed Native Hawaiians to bring thousands of 
our ancestors home to be respectfully venerated and 
ceremoniously reburied. Ten years after the passage of NAGPRA, 
almost 4,000 of our Native Hawaiian ancestors were repatriated 
out of our local museum on Oahu only. Thousands more iwi were 
also repatriated from museums and institutions across the 
United States and internationally by using NAGPRA as a model.
    NAGPRA is living proof of what may be accomplished when 
individuals and organizations build a bridge founded on mutual 
respect and our shared humanity. Native Hawaiians are humbled 
and grateful to be of service to our beloved ancestors, knowing 
that but for them, we simply would not exist.
    In the increasingly contentious times now present in our 
world and in the greater story of humanity, caring for our 
ancestors guides, strengthens, and teaches us the enduring 
value of aloha, which embodies the concepts of love, 
compassion, and forgiveness. [Phrase in Native tongue.] No task 
is too big when done together by all.
    OHA wants to help, and we offer the Committee our written 
suggestions for future NAGPRA amendments. We stand ready to 
assist as this august Senate Committee may require.
    Ola na iwi, the bones live. Mahalo for this opportunity to 
testify.
    [The prepared statement of Ms. Lindsey follows:]

    Prepared Statement of Carmen ``Hulu'' Lindsey, Chair, Office of 
                            Hawaiian Affairs
    Aloha e Chairman Schatz, Vice Chairman Murkowski, and the Members 
of the U.S. Senate Committee on Indian Affairs.
    Mahalo nui loa (Thank you very much) for inviting me to testify on 
behalf of the Office of Hawaiian Affairs (OHA) and our beneficiaries--
the Native Hawaiian community. Over the years, this Committee has 
consistently been comprised of dedicated, intuitive individuals that 
collectively and sincerely examine problems unique to the Native 
American, Native Hawaiian, and Alaskan Native peoples. Most 
importantly, you have listened and proposed legislation to overcome 
these identified problems. OHA again recognizes Chairman Schatz for 
your work on behalf of our families in Hawai`i. Your work here empowers 
the Native community to continue exercising true self-determination in 
all aspects of our lives.
    One of the many ways that we seek and claim such self-determination 
is through the return and reburial of our Native ancestors who were 
unjustly disinterred and taken away to institutions and facilities--
both here at home, and abroad all over the world. The Native American 
Graves Protection and Repatriation Act (NAGPRA) established in 1990 
solidified the ability for Native peoples to make these claims in the 
U.S. and work towards healing past injustices that violated the 
sanctity of the grave. The road to NAGPRA was a difficult one, but an 
important battle for human rights. Mahalo to this Committee for walking 
this road with us.
Background on OHA and its standing to represent Native Hawaiians
    Established by our State's Constitution, \1\ the Office of Hawaiian 
Affairs is a semi-autonomous State agency that was created after a 
Constitutional Convention in 1978 for the betterment of Native 
Hawaiians. Guided by a board of nine publicly elected trustees, all of 
whom are currently Native Hawaiian, OHA fulfills its mandate through 
advocacy, research, community engagement, land management, and the 
funding of community programs.
---------------------------------------------------------------------------
    \1\ HAW. CONST., art. XII,  5 (1978).
---------------------------------------------------------------------------
    Much like occurrences in the Continental U.S. during the latter 
half of the 20th century, Hawaiians too were pushing back against rapid 
development out of a sense of survival to preserve cultural sites, 
burials, and resources as economic stimulus packages that followed the 
Great Depression and World War II were being pushed as part of 
political agendas and to feed a rapidly growing American population. 
Further, increased militarization contributed to desecrations as 
thousands of Hawaiian burials were exposed during the 1940s and beyond, 
with the development of the Marine Corps Base on the Mokapu peninsula. 
Sadly, to this day, these iwi kupuna (ancestral Hawaiian remains) have 
not been laid to rest; yet, remain closer than ever to a final rest due 
to the unending love and tireless work of their descendants.
    Notably, the latter half of the 1970s is looked at by some as a 
``Hawaiian Renaissance'' or ``Reawakening''. In Hawai`i, displaced 
farmers (i.e., Kalama Valley Farmers, Waiahole-Waikane Farmers) and 
cultural practitioners found a sense of unity in their struggles as 
Hawai`i was rapidly changing in the 1970s with continued urban 
expansion. With the success of environmental protest in the 1960s, 
social and cultural activists were following suit in the 1970s all 
across America and other parts of the globe (e.g., New Zealand, 
Australia). In some ways, the creation of OHA was one of the crowning 
achievements of this era in Hawai`i as OHA has since been around to 
effectively advocate for Native Hawaiian rights and resources. This is 
especially true at the federal level. OHA is specifically enumerated 
within NAGPRA because of its expertise in Hawaiian affairs and 
repatriation.
    As NAGPRA was coming to be, laws were changing in Hawai`i as iwi 
kupuna were consistently being desecrated during development projects 
for hotels, resorts, and condominiums--many of which were located along 
the shoreline and sandy dunes, where many generations of Hawaiians 
chose to bury their dead. We must not forget that in 1986, over 1,100 
of our iwi kupuna consisting of men, women, children and infants, were 
systematically disinterred in Honokahua, Maui, during the construction 
of the Ritz Carleton hotel at Kapalua. As the number of exposed iwi 
continued to climb, it was only through public outcry, and ultimately 
executive action, via former Governor John Waihe`e, that the project 
was halted. Ultimately, the resort was moved inland in avoidance of the 
massive burial ground and a burial preserve was established via an 
agreement document with OHA and Hui Alanui `o Makena in 1988.
    Furthermore, the situation at Honokahua further prompted the 
creation of Hui Malama I Na Kupuna `o Hawai`i Nei, another key Native 
Hawaiian organization (NHO) specifically mentioned in NAGPRA and the 
National Museum of the American Indian Act. Additionally, OHA 
established a Native Hawaiian Historic Preservation Task Force in 1989 
that led to the recommendation for the State to create five Island 
Burial Councils (IBC) to oversee the disposition of Hawaiian burials. 
Honokahua was the genesis of Act 306 in 1990 which amended our historic 
preservation law (Chapter 6E, Hawai`i Revised Statutes), and which 
established both the IBCs and State Historic Preservation Division 
procedures for the care, management and protection of unmarked burial 
sites in the islands regardless of ethnicity. These tools have been 
invaluable for the protection of iwi kupuna, yet much work remains.
Collaborative NAGPRA Work and Successes Over the Last 30 Years
    Over the years since the very beginnings of NAGPRA, the Office of 
Hawaiian Affairs has participated in domestic and international 
repatriations in partnership with other NHOs, families, and 
beneficiaries. In many cases, beneficiaries bring information to OHA 
about filing a repatriation claim and OHA assists them through the 
process to provide the necessary resources to carry it out. For 
decades, OHA partnered with Hui Malama I Na Kupuna, the only other NHO 
specifically called out in NAGPRA with OHA, as well as other NHOs, 
including various IBCs as co-claimants. Together, we were able to 
successfully repatriate thousands of iwi kupuna from all across the 
world in over 120 repatriation efforts, and here at home in the islands 
as well. While Hui Malama is now dissolved, OHA still works closely 
with community members who are former members and identified as 
traditional religious leaders.
    In the 1990s, OHA worked with NHOs to assist in the successful 
repatriation of thousands of remains, not only from institutions on the 
Continent, but right here at home with the Bishop Museum. An estimated 
3,000 individuals from Marine Corps Base Hawai'i development work at 
Mokapu were held at the Bishop Museum for over 50 years. The museum's 
island of O'ahu Collection alone contained over 1,000 individuals 
collected over a span of almost 90 years. When disagreements arose 
during these early years of NAGPRA, OHA was there to assist fellow 
Native Hawaiians with taking disputes to the NAGPRA Review Committee 
for consideration. For a time, Native Hawaiian cases were the most 
heard by the Review Committee.
    Some of our most recent successes alongside community leaders 
include the repatriation of ancestral remains from Berkeley and Case 
Western Reserve University in early October. Notably, this effort also 
saw the return of a lei niho palaoa (whale tooth necklace suspended 
with human hair) from the Cleveland Museum of Natural History. At 
present, a team of dedicated Native Hawaiians working closely with OHA 
are enroute to Germany and Austria to recover ancestral remains on 
OHA's behalf. While international efforts are not covered under NAGPRA, 
institutions abroad often choose to follow our domestic repatriation 
process and increasingly are requiring that repatriations be 
coordinated with U.S. Embassies located in that particular country. 
Thus, the wisdom of NAGPRA and the expertise of the U.S. Department of 
Interior extends far beyond our national borders, thus enabling the 
return of our iwi kupuna from across the globe.
    It is these kinds of partnerships that make repatriations work. 
Repatriation work can be costly and very technical at times. OHA serves 
Native Hawaiians by taking action in these situations and providing 
much needed eduation. As part of the interactive repatriation process, 
OHA has provided informational presentations about NAGPRA to potential 
claimants by explaining the process and their role in it. In 2018, 
OHA's Compliance team flew to Kona to provide a series of PowerPoint 
presentations and workshops to the families of Honaunau to repatriate 
an ancestral effigy taken from the Hale o Keawe (a chiefly mausoleum) 
in 1825 that now resides in the Chicago Field Museum. Unfortunately, 
the Chicago Field Museum has challenged the families' interpretation of 
the effigy as being funerary in nature and Hale o Keawe as constituting 
a burial site.
    While it may be possible for these individuals and NHOs to apply 
for NAGPRA grants on their own, some of these individuals work two jobs 
and don't have the technical expertise to submit a competitive grant. 
In this regard, OHA's assumption of the repatriation related costs 
(inclusive of travel, reburial fees, paperwork) lessens the financial 
burden to these Native Hawaiian claimants. OHA serves as a mentor and 
guide while also empowering these families and NHOs with the knowledge 
and expertise to advocate for themselves and share what they have 
learned. As a result, a community network and coalition of family 
members is now able to take on the responsibility of culling through 
museum holdings in search of their ancestral remains. It is heartening 
to see these Native Hawaiians well informed and able to effectively 
advocate on their own for the return of their Native Hawaiian 
ancestors.
Priorities for NAGPRA Improvement
    Despite the many successes and improvements NAGPRA has enabled in 
the care and return of our Native Hawaiian ancestors, we know there 
will be challenges ahead. In an effort to improve an already seminal 
and vital NAGPRA statute, we offer the following amendments to: 1) the 
definition of a NHO; 2) the composition of the NAGPRA Review Committee; 
3) the protection of confidential information disclosed as part of the 
NAGPRA process; and, 4) the extension of certain NAGPRA requirements to 
collections on loan. A fifth and final suggestion is made regarding 
improvements to statutes that go beyond NAGPRA--1) lowering the mens 
rea for NAGPRA trafficking crimes, and 2) creating a framework 
insulating private individuals from criminal liability when they 
voluntarily return NAGPRA objects and Native American human remains.
1. Definition of a NHO (25 USC   3001)
    The definition of NHO should be updated to require that NHOs 
consist of Native Hawaiians in substantive policymaking decisions. This 
change would further ensure better consistency across federal laws and 
policies affecting Native Hawaiians. The current NAGPRA statute 
definition does not require that a NHO actually consist of Native 
Hawaiians in decisionmaking roles despite the familial importance of 
repatriation to Native Hawaiians. In contrast, the NHO definition 
within the Native Hawaiian Education Act (25 USC   7511) does in fact 
require Native Hawaiians to be in policymaking positions. NAGPRA merely 
requires that a NHO have a mission to serve Native Hawaiians.
    The current language has historically been contentious and 
previously presented as problematic in testimony to the Committee in 
2004. \2\ In the past, a museum receiving federal funds with a stated 
mission to serve Native Hawaiians believed they could qualify as a NHO 
to claim human remains and funerary objects under their own control. 
Allowing this would have presented a clear conflict of interest and 
undermined the intent of NAGPRA. Fortunately, this museum withdrew 
their attempts to qualify as a NHO after further consideration and 
public objection. To eliminate this problem, we suggest the definition 
include a requirement that a NHO consist of Native Hawaiians in 
substantive policymaking positions within the organization in the way 
that NHO is defined in other federal laws and policies.
---------------------------------------------------------------------------
    \2\ See December 8, 2004, Oversight Hearing before the Committee on 
Indian Affairs, 108th Congress, to receive testimony on the application 
of the Native American Graves Protection and Repatriation Act in the 
State of Hawai`i.
---------------------------------------------------------------------------
2. Composition of the NAGPRA Review Committee (25 U.S.C.  3006)
    Current statute requires that the NAGPRA Review Committee consist 
of seven members, two of which must be traditional Indian religious 
leaders. OHA questions why this language only requires two traditional 
Indian religious leaders on the Review Committee with no mention of an 
explicit requirement for a traditional Native Hawaiian or Alaskan 
Native religious leader. The existing definition of a traditional 
religious leader does not subdivide Native Hawaiian and Tribal leaders 
into separate categories and there is no rational reason why Native 
Hawaiian religious leaders should be treated any differently than 
Tribal religious leaders when it comes to their ability to serve on the 
Review Committee. Native Hawaiian religious leaders need parity with 
Tribal religious leaders when it comes to the composition of the Review 
Committee. While OHA does not believe the original intent of the 
language was meant to be exclusionary, OHA has received recent 
complaints that traditional Hawaiian religious leaders have been 
deliberately excluded from being on the Review Committee. OHA is 
concerned that Native Hawaiian religious leaders may have been unfairly 
excluded from serving on the Review Committee in the past. OHA believes 
these concerns merit amendments to the existing statute to include a 
Native Hawaiian religious leader as part of the three religious leaders 
designated to serve on the Review Committee, especially since many of 
our most ardent and knowledgeable NAGPRA advocates are Native Hawaiian 
religious leaders--much in the way that Indian and Alaskan religious 
leaders are involved in NAGPRA claims.
3. Protection of Confidential Information Disclosed as Part of the 
        NAGPRA Process
    As part of the NAGPRA process, often times sensitive genealogical 
or burial location information must be disclosed by potential claimants 
as part of the process. In a recent claim with the Chicago Field 
Museum, families from Honaunau provided entire genealogies from each 
member of their NHO to show a lineal connection to the great Hawai`i 
Island Chief Keawe. In other cases, recorded or notated consultations 
may possibly discuss reburial locations. OHA is concerned that this 
kind of sensitive information disclosed as part of the NAGPRA process 
may not be protected if a request for such information is made pursuant 
to the Freedom of Information Act (FOIA). To eliminate intrusion into 
our sacred genealogies and places of our Native claimants, an exemption 
is needed within NAGPRA to protect this kind of sensitive information 
from being subject to FOIA requests.
4. Extension of Certain NAGPRA Requirements to Collections on Loan
    With NAGPRA having been in force for over 30 years, one would think 
that museums holding ancestral remains would by now have posted all 
inventories required by law. However, OHA has observed situations where 
collections on long-term loan have been forgotten or overlooked by a 
Federal agency or museum that is actually in control of the human 
remains; thus, resulting in a situation where the agency or museum in 
actual control was not aware that they should comply with NAGPRA. In 
the last 3 years, OHA has experienced this problem with 2 institutions 
in Ohio and 1 in California. Fortunately, these institutions were able 
to expedite the repatriations once learning that they held our 
ancestors, without having to resort to lengthy NAGPRA penalty 
processes.
    OHA believes that a museum holding a loaned collection from either 
a Federal agency or museum has an ethical responsibility to report non-
compliance with NAGPRA or at least to notify the Federal agency that 
retains control of the human remains about NAGPRA requirements. To 
reduce gaps in NAGPRA compliance, OHA recommends including statutory 
language requiring museums that hold collections on loan to report 
NAGPRA non-compliance or at least to advise the Federal agency or 
museum retaining control that they must comply with NAGPRA's inventory 
requirements.
5. Beyond NAGPRA: 1) Lowering the Mens Rea for NAGPRA Trafficking 
        Crimes; and, 2) Creating a Framework Insulating Private 
        Individuals from Criminal Liability When they Voluntarily 
        Return NAGPRA Objects and Native American Human Remains
    Despite existing criminal enforcement mechanisms within 18 USC   
1170 pertaining to the trafficking of NAGPRA objects and Native 
American human remains, OHA still sees Hawaiian ancestral remains, 
funerary objects, and sacred objects being sold at auction within the 
U.S. by unscrupulous collectors that disregard our humanity. OHA 
frequently receives alerts from the Association of American Indian 
Affairs about the online sale of NAGPRA objects and Native American 
human remains. Most recently, a seller attempted to sell a Native 
Hawaiian fishhook allegedly made of human bone in an April 2020 online 
auction. Fortunately, we were able to reclaim that fishhook with help 
from the Association of American Indian Affairs, Federal Bureau of 
Investigation, and the Bureau of Indian Affairs.
    The fact that these online sales are still ongoing suggests that 
traffickers of Native human remains and NAGPRA protected objects are 
either not deterred by existing criminal enforcement statutes or 
completely naive to the crimes they are committing. The claim of 
naivete by some offenders has further allowed them to avoid prosecution 
as the mens rea under 18 USC   1170 only requires that offenders 
knowingly commit a crime.
    Further, within the last decade, OHA has responded to several 
inquiries from families on the mainland that discovered they are in 
possession of ancestral Hawaiian remains. NAGPRA does not currently 
cover ancestral remains that are in private possession, nor is there 
any guidance or amnesty from NAGPRA trafficking laws afforded to these 
individuals. OHA believes that many private individuals in this 
situation would want to do the right thing and return ancestors that 
are discovered in their possession, yet are fearful they may be 
prosecuted if they do so.
    While OHA is aware that private possession and criminal penalties 
for trafficking NAGPRA objects are beyond the scope of NAGPRA, we do 
acknowledge that Chair Schatz and Vice Chair Murkowski were co-sponsors 
of the yet-to-be-enacted Safeguard Tribal Objects of Patrimony (STOP) 
Act in 2020. We commend this action and hope that the provisions within 
the STOP Act become law. OHA supports the intent of the STOP Act as it 
would increase the maximum penalties under 18 USC   1170, would 
require an export certification system for cultural objects, and would 
create a framework for the voluntary return of NAGPRA objects by 
private parties.
    These provisions would discourage online sales of NAGPRA objects 
and would encourage private individuals to voluntarily return human 
remains in their possession. However, the mens rea requirement under 18 
USC   1170 is problematic because a seller is required to know their 
actions are illegal in order for criminal liability to attach. We 
recommend that these mens rea requirements be reviewed and amended so 
as to more effectively deter illegal trafficking.
Closing Remarks
    In closing, the repatriation of our ancestors is part of a healing 
process and a humanitarian matter at its core. Even after retrievals 
are complete, healing continues as reburials are coordinated and 
ceremonially conducted by Native Hawaiian claimants. As famed Hawaiian 
scholar Mary Kawena Pukui has stated, iwi are our most cherished 
possession. We must never lose sight of this and continue to persevere.
    I wish to express my appreciation and gratitude to both the 
Chairman and the Vice Chairman for taking on this responsibility. It 
has been an honor to have had this opportunity to address you and your 
Committee members. OHA's very capable and knowledgeable staff and I 
stand ready to assist you in accomplishing this most important work, 
both now and in the future.
    A hui hou. Until we meet again.

    Senator Murkowski. [Presiding.] Mahalo, Ms. Lindsey.
    Now we will turn to Dr. Valerie Grussing.

        STATEMENT OF VALERIE GRUSSING, Ph.D., EXECUTIVE 
DIRECTOR, NATIONAL ASSOCIATION OF TRIBAL HISTORIC PRESERVATION 
                            OFFICERS

    Dr. Grussing. Mr. Chairman, Madam Vice Chair and members of 
the Committee, thank you for this opportunity. We are also 
keeping Senator Lujan in our thoughts, and sending him well 
wishes for a full recovery.
    My name is Valerie Grussing, and I have the honor of 
serving as the Executive Director of the National Association 
of Tribal Historic Preservation Officers, NATHPO. I am here 
today with our Repatriation Advisor, Dr. Timothy McKeown, who 
is also available to respond to questions.
    We are speaking today from Silver Spring, Maryland, a D.C. 
suburb, and the ancestral homeland of the Piscataway and 
[Native tribe name] peoples. As a descendant of European 
colonizers, I am especially grateful and humbled for the 
opportunity to participate here, and to do this work.
    When we are talking about healing the soul wound of our 
Nation's First Peoples, we have a responsibility to support and 
elevate Native voices, and demanding basic human rights. When 
some of us aren't whole, none of us are whole. I have heard 
some of our members say that they try to walk into a room like 
their ancestors sent them. I am doing that today from my own 
perspective, and I humbly offer a heartfelt apology for the 
systematic injustices and atrocities inflicted upon Native 
peoples, whether or not my own direct ancestors personally had 
a hand. I think this is important to say and it is important to 
hear in processes of reconciliation.
    I offer the rest of my testimony in honor and service of 
those who are not present to tell their stories, those living, 
and those who have walked on, as well as those yet to come, and 
with the hope that we are in a time of lasting transformational 
change.
    NATHPO is the only national organization devoted to 
supporting tribal historic preservation officers, THPOs. These 
tribal government officials protect culturally important places 
and revitalize the connections to cultural heritage that 
sustain the health and vitality of Native peoples. The 
repatriation of Native ancestors and objects of cultural 
patrimony is critically important to THPOs, who are frequently 
also the NAGPRA representative for their tribe.
    After more than three decades of NAGPRA, we again consider 
amendments to strengthen Indian tribes' and Native Hawaiian 
organizations' ability to protect gravesites and reclaim their 
ancestors and objects, all basic human rights that somehow, we 
are still fighting for. NATHPO has been deeply involved in 
these efforts, including our report in 2008 together with the 
Makah Tribe on Federal compliance with NAGPRA, and how to 
improve the process. GAO produced a report on this in 2010, and 
on the Smithsonian's repatriation efforts in 2011. And my and 
our Chairman's predecessors testified before the House Natural 
Resources Committee in 2009, and before this Committee in 2011.
    Unfortunately, the recommendations and report findings 
remain relevant today. We submit our report for the record as a 
resource to support this Administration's commitment to 
upholding the trust responsibility to tribes. We also submitted 
comments in response to DOI's boarding school initiative and 
draft proposed changes to the NAGPRA regulations, which we will 
submit for the record. We would like to specifically thank 
Secretary Haaland and the Assistant Secretaries for ensuring 
that tribes are consulted as part of these initiatives.
    In our written testimony, we provide data on the 
implementation of NAGPRA's three sets of provisions. The law 
has not been ineffective, but has a long way to go. We 
recommend changes to definitions. We ask the Committee to 
establish and fund an interagency task force to stop illegal 
trafficking of human remains and cultural items. And we ask the 
Senate to pass the STOP Act.
    We support redelegating program activities to the Office of 
the Assistant Secretary for Indian Affairs, as proposed in the 
2020 Haaland bill to amend NAGPRA. We also request that the 
Committee ask GAO to conduct three evaluations of Federal 
agency compliance of enforcement, investigations, and 
penalties, and of the NAGPRA grants program.
    Finally, it is my duty to talk about funding. THPOs receive 
dedicated Federal funding that covers an average of one staff 
member. And they are not allowed to use that for their NAGPRA 
duties. NAGPRA funding is even more limited, and is awarded 
competitively on a project basis.
    A system that makes tribes compete for limited funding for 
the most sacred and foundational, restorative work is re-
traumatizing. The time is now for the Federal Government to 
fulfill its promises, to fund and enforce agencies' 
consultation requirements, and to fund tribes so that they have 
a seat at the table complete with the meal and utensils.
    Thank you again for this opportunity. We commend the 
Committee for its intent to empower tribes in protecting Native 
places, gravesites, and reclaiming their ancestors.
    [The prepared statement of Ms. Grussing follows:]

  Prepared Statement of Valerie Grussing, Ph.D., Executive Director, 
     National Association of Tribal Historic Preservation Officers
    Good morning, Mr. Chairman and Members of the Committee. My name is 
Valerie Grussing, Ph.D., and I have the honor of serving as the 
Executive Director of the National Association of Tribal Historic 
Preservation Officers (NATHPO). I am here today with NATHPO's 
Repatriation Advisor, C. Timothy McKeown, Ph.D., who has compiled some 
of the data presented in my testimony and will be available if needed 
to respond to technical questions. We thank you for the opportunity to 
testify as part of this oversight hearing.
    NATHPO is the only national organization devoted to supporting 
Tribal historic preservation programs. Founded in 1998, NATHPO is a 
501(c)(3) non-profit membership association of Tribal government 
officials who implement federal and Tribal preservation laws. NATHPO 
empowers Tribal preservation leaders protecting culturally important 
places that perpetuate Native identity, resilience, and cultural 
endurance. Connections to cultural heritage sustain the health and 
vitality of Native peoples. NATHPO provides guidance to preservation 
officials, elected representatives, and the public about national 
historic preservation legislation, policies, and regulations. NATHPO 
promotes Tribal sovereignty, develops partnerships, and advocates for 
Tribes in governmental activities on preservation issues.
    Tribal Historic Preservation Officers (THPOs) assume the 
responsibilities of State Historic Preservation Officers on Tribal 
lands and advise and work with federal agencies on the management of 
Tribal historic properties. THPOs also preserve and rejuvenate the 
unique cultural traditions, practices, and languages of their Tribal 
communities. The repatriation of Native ancestors, funerary objects, 
sacred objects, and objects of cultural patrimony is critically 
important to our members. NATHPO is very active on repatriation issues, 
most recently in advocating for THPOs' interests as part of the 
Department of the Interior's consultation on a draft proposed revision 
of the NAGPRA regulations and on the Secretary of the Interior's 
Boarding School Initiative. I would like to specifically thank 
Secretary of the Interior Debra Haaland, Assistant Secretary for Indian 
Affairs Bryan Newland, and Assistant Secretary for Fish and Wildlife 
and Parks Shannon Estenoz for ensuring that Tribes are consulted as 
part of these initiatives.
    The Native American Graves Protection and Repatriation Act of 1990 
(NAGPRA), along with the repatriation provisions of the National Museum 
of the American Indian Act of 1989 (NMAI Act), establish Federal 
requirements for Federal agencies and museums, including the 
Smithsonian Institution, regarding the repatriation or disposition of 
Native American human remains and other cultural items to lineal 
descendants, Indian Tribes, and Native Hawaiian organizations. The NMAI 
Act was amended in 1996 to bring it more in line with NAGPRA, \1\ but 
NAGPRA itself has never been amended substantively. \2\ It is fitting 
that after more than three decades of implementing NAGPRA we take this 
opportunity to assess its effectiveness and consider amendments to 
enhance Indian Tribes' and Native Hawaiian organizations' ability to 
protect grave sites and reclaim their ancestors, funerary objects, 
sacred objects, and objects of cultural patrimony.
---------------------------------------------------------------------------
    \1\ Pub. L. 104-278,  4, Oct. 9, 1996, 110 Stat. 3355.)
    \2\ Pub. L. 102-572, title IX,  902(b)(1), Oct. 29, 1992, 106 
Stat. 4516
---------------------------------------------------------------------------
    NAGPRA includes three separate sets of provisions. The first set 
governs the protection of Native American graves and the disposition of 
cultural items excavated or discovered on Federal and Tribal lands 
after 1990. The second set of provisions requires museums and Federal 
agencies to prepare summaries and inventories of their collections and, 
upon request, repatriate cultural items to lineal descendants and 
culturally affiliated Indian Tribes and Native Hawaiian organizations. 
The third set of provisions establish criminal penalties for illegal 
trafficking of Native American human remains and cultural items. I will 
first address some concerns expressed by tribal governments related to 
one of the definitions in NAGPRA and then each of these three sets of 
provisions in turn.
25 U.S.C.  3001-Definitions
    The most problematic definition in the Act is that of ``Native 
American.'' NAGPRA defines the term to mean ``of, or relating to, a 
tribe, people, or culture that is indigenous to the United States.'' 
However, in 2004, the United States Court of Appeals for the Ninth 
Circuit interpreted the term ``Native American'' to require that human 
remains and other cultural items ``must bear a significant 
relationship'' to a presently existing Tribe, people, or culture to be 
considered Native American. \3\ Not only was this incorrect opinion 
antithetical to the purpose and policy underlying NAGPRA, it 
necessitated passage of separate legislation to enable reburial of the 
9,000-year-old human remains at issue in the case, and it created 
ambiguity which, in at least one case, has led to an acquittal in a 
NAGPRA trafficking case. \4\ In order to address this issue, NATHPO 
recommends that the Congress amends NAGPRA's definition of ``Native 
American'' to read as follows:
---------------------------------------------------------------------------
    \3\ Bonnichsen v. United States, 367 F.3d 864, 878 (9th Cir. 2004) 
(emphasis in original).
    \4\ U.S. v. Deluca, No. 00 CR 387 (N.D. Ill. Mar. 6, 2002).

        (9) ``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.

25 U.S.C.  3002-Ownership
    The ownership provisions apply to the discovery, removal, or 
excavation of Native American cultural items on Federal lands and 
Tribal lands after 1990. NAGPRA and its implementing regulations 
require persons who discover Native American human remains or other 
cultural items on Federal or Tribal lands to immediately stop any 
ongoing activity and provide immediate telephone notification of the 
inadvertent discovery, with written confirmation, to the responsible 
Federal land manager. The Federal land manager then must notify the 
appropriate Indian Tribes or Native Hawaiian organizations and begin 
consultation about the disposition of cultural items and complete a 
plan of action. The activity that resulted in the inadvertent discovery 
may resume thirty days after certification by the Federal land manager 
of receipt of the written confirmation of notification, or sooner if a 
written, binding agreement is executed between the Federal agency and 
the appropriate Indian Tribes or Native Hawaiian organizations. 
Discovered human remains or other cultural items may only be removed or 
excavated after consultation with the appropriate Indian Tribes and 
Native Hawaiian organizations, or, in the case of Tribal lands, with 
the consent of the appropriate Indian Tribe or Native Hawaiian 
organization. The excavation or removal of cultural items must also 
comply with the requirements of the Archaeological Resources Protection 
Act (ARPA). NAGPRA provides a detailed priority listing to determine 
the ownership or control of discovered or excavated Native American 
human remains and other cultural items based on lineal descent, Tribal 
land, cultural affiliation, and aboriginal land. To date, only 218 
discoveries and excavations of Native American human remains and other 
cultural items had occurred on Federal lands, \5\ indicating that 
NAGPRA has been somewhat successful in fulfilling its grave protection 
mandate.
---------------------------------------------------------------------------
    \5\ Newspaper Notices, https://grantsdev.cr.nps.gov/NagpraPublic/
Home/NID (accessed January 27, 2022).
---------------------------------------------------------------------------
    NAGPRA sets standards for the disposition of human remains and 
other cultural items discovered on Federal lands that are recognized by 
a final judgement of the Indian Claims Commission or the United State 
Court of Federal Claims. \6\ The advisory committee has adopted this 
standard in its recommendations regarding the disposition of culturally 
unidentifiable human remains in museum or Federal agency collections, 
but elaborated on the basis for determining aboriginal lands. The 
current regulations allow aboriginal lands to also be determined by a 
treaty, Act of Congress, or Executive Order. \7\ In order to bring the 
ownership and repatriation provisions in line, we request that the 
committee amends the provisions of 25 U.S.C.  3002 (a)(2)(C) to read 
as follows:
---------------------------------------------------------------------------
    \6\ 25 U.S.C.  3002 (a)(2)(c).
    \7\ 43 CFR  10.11 (c)(1)(ii).

        if the cultural affiliation of the objects cannot be reasonably 
        ascertained and if the objects were discovered on Federal land 
        that is recognized by a final judgment of the Indian Claims 
        Commission or the United States Court of Claims, or a treaty, 
        Act of Congress, or Executive Order as the aboriginal land of 
---------------------------------------------------------------------------
        some Indian Tribe----

    The ownership section has proved the most prone to litigation, due 
in part to the brevity of the statutory provisions as well as the lack 
of any institutionalized form of alternative dispute resolution. We 
hear from THPOs that in many cases Federal agency officials are failing 
to adequately consult with Indian Tribes following inadvertent 
discoveries and are failing to complete the plans of action required by 
regulation. To get a better grasp of Federal compliance with NAGPRA's 
provisions protecting Native American graves and cultural items, we ask 
the committee to:

        request the Government Accountability Office to complete an 
        evaluation of Federal agency compliance with the requirements 
        of 25 U.S.C.  3002 and its implementing regulations, 
        particularly focusing on consultation, completion of plans of 
        action and comprehensive agreements, publication of notice of 
        intended disposition, and the disposition of so-called 
        ``unclaimed'' cultural items, and whether establishing a 
        dedicated position to ensure compliance with these provisions 
        at each agency would be beneficial.

25 U.S.C.   3003-3008-Repatriation of Cultural Items in Federal 
        Agency and Museum Collections
    The repatriation provisions of NAGPRA require Federal agencies and 
museums that receive Federal funds to prepare written summaries of 
cultural items and more detailed inventories of Native American human 
remains and association funerary objects in their possession or 
control, consult with Indian Tribes and Native Hawaiian organizations 
and, upon request, repatriation cultural items. To date, slightly more 
than 200,000 Native American ancestors have been inventoried, of which 
museums and Federal agencies have indicated a willingness to repatriate 
approximately 42 percent. \8\
---------------------------------------------------------------------------
    \8\ 2021 Native American Graves Protection and Repatriation Act. 
https://public.tableau.com/app/profile/nationalnagpra/viz/
2021NativeAmericanGravesProtectionandRepatriationAct/1_Reported 
(accessed January 30, 2022).
---------------------------------------------------------------------------
    NAGPRA establishes a seven-person advisory committee with one of 
its responsibilities being to compile an inventory of culturally 
unidentifiable human remains that are in the possession or control of 
each Federal agency and museum and recommend specific actions for 
developing a process for disposition of such remains. After long 
discussions, development of several drafts, and extensive public 
consultation, the advisory committee issued its recommendations in 
2000. \9\ The advisory committee noted that although the legal standing 
of funerary objects associated with culturally unidentifiable human 
remains is not addressed in NAGPRA, the statute does not prohibit their 
voluntary repatriation by museums or Federal agencies to the extent 
allowed by Federal law. Regulations implementing the advisory 
committee's recommendations were promulgated in 2010. \10\ The 
regulations require museums and Federal agencies that cannot prove 
right of possession to offer to transfer control of culturally 
unidentifiable human remains to the Indian Tribe or Native Hawaiian 
organization from whose Tribal land, at the time of the excavation or 
removal, the human remains were removed, or to the Indian Tribe or 
Tribes that are recognized as aboriginal to the area from which the 
human remains were removed. The regulations also recommend that a 
museum or Federal agency transfer control of funerary objects that are 
associated with culturally unidentifiable human remains if Federal or 
State law does not preclude it. NATHPO feels strongly that Native 
American funerary objects in museum or Federal agency collections 
should be returned along with Native ancestors with which they were 
lovingly buried. We request that the committee amend the advisory 
committee's responsibilities at 25 U.S.C.  3006 (c) as follows to 
explicitly authorize a requirement that human remains and associated 
funerary objects be returned together:
---------------------------------------------------------------------------
    \9\ Recommendations Regarding the Disposition of Culturally 
Unidentifiable Native American Human Remains, 65 Fed. Reg. 36462 (June 
8, 2000).
    \10\ See 43 CFR  10.11--Native American Graves Protection and 
Repatriation Act Regulations--Disposition of Culturally Unidentifiable 
Human Remains; Final Rule, 75 Fed. Reg. 12377 (Mar 15, 2010).

        (5) compiling an inventory of culturally unidentifiable human 
        remains and associated funerary objects that are in the 
        possession or control of each Federal agency and museum and 
        recommending specific actions for developing a process for 
---------------------------------------------------------------------------
        disposition of such remains and objects;

    NAGPRA also authorizes the Secretary of the Interior to assess 
civil penalties on museums that fail to comply with the repatriation 
provisions of the Act. Information obtained by Dr. McKeown shows that, 
to date, 21 museums have failed to comply, one twice, and that 
$64,646.34 in penalties were assessed. We also know that in 2017 the 
National Park Service had a backlog of allegations against another 62 
museums that had not been investigated and that no failures to comply 
have been determined since then.
    NATHPO is very concerned that civil enforcement of NAGPRA has been 
carried out without any degree of public scrutiny, that the penalties 
assessed are typically mitigated or unknown, and that since 2016 it 
appears to have completely stopped. We ask the committee to:

        request the Government Accountability Office to complete an 
        evaluation of the implementation of the civil enforcement 
        provisions of NAGPRA and its implementing regulations, 
        particularly focusing on ensuring that all allegations are 
        adequately investigated in a timely manner, that the full range 
        of penalties are considered, and that the results of these 
        investigations are publicly known.

    NAGPRA authorizes the Secretary of the Interior to make grants to 
Indian Tribes and Native Hawaiian organizations for the purpose of 
assisting such Tribes and organizations in the repatriation of Native 
American cultural items, and to museums for the purpose of assisting 
the museums in conducting the inventories and summaries. \11\ Grants 
funding may not be used for the initiation of new scientific studies of 
Native American human remains and associated funerary objects or other 
means of acquiring or preserving additional scientific information from 
such remains and objects. \12\ In 1990, the Congressional Budget Office 
estimated that NAGPRA would cost the Federal Government between $20 and 
$50 million. \13\ At the end of FY2020, $50.02 million in grants had 
been awarded, \14\ yet the remains of over 117,000 Native American 
ancestors still sit on museum and Federal agency shelves. \15\ Funding 
needs from Tribes exceed the available grant appropriation and the 
maximum grant cap ensures that progress towards repatriation is 
piecemeal and slow. Some THPOs have also expressed concern that some 
museums may be using grant money to acquire and preserve additional 
scientific information on human remains and associated funerary 
objects. We ask the committee to:

    \11\ 25 U.S.C.  3008.
    \12\ 25 U.S.C.  3003 (b)(2).
    \13\ Letter from Robert D. Reischauer, director, Congressional 
Budget Office to Representative Morris Udall (October 15, 1990).
    \14\ National NAGPRA Program, Fiscal Year 2020 Report.
    \15\ 2021 Native American Graves Protection and Repatriation Act. 
https://public.tableau.com/app/profile/nationalnagpra/viz/
2021NativeAmericanGravesProtectionandRepatriationAct/1_Reported 
(accessed January 30, 2022).
---------------------------------------------------------------------------
        request the Government Accountability Office to complete an 
        evaluation of the NAGPRA grant program, particularly focusing 
        on how funding has been used in the past, identifying which of 
        those activities can be shown to most directly result in the 
        repatriation of Native American cultural items, and make 
        suggestions as to how the grants may be most effectively used 
        to maximize repatriation.
18 U.S.C.  1170-Illegal Trafficking in Native American Human Remains 
        and Cultural Items
    The criminal provisions of NAGPRA make it a crime to knowingly 
sell, purchase, use for profit, or transport for sale or profit Native 
American human remains or cultural items under certain conditions. For 
human remains, law enforcement must prove beyond a reasonable doubt 
that the financial incident occurred without the right of possession, 
meaning that the defendant cannot show that the human remains were 
obtained with the voluntary consent of an individual or group that had 
authority of alienation. Proving illegal trafficking of cultural items 
is more complicated. Law enforcement must prove beyond a reasonable 
doubt that the financial incident violated NAGPRA, meaning that the 
cultural items were either removed from Federal or Tribal lands without 
a permit, or were obtained from a Federal agency or museum that failed 
to comply with repatriation provisions of NAGPRA. Data obtained by Dr. 
McKeown from the Department of Justice and the United States Courts 
\16\ indicates that, to date, 125 investigations of illegal trafficking 
of Native American human remains and cultural items have been opened 
resulting in 34 convictions.
---------------------------------------------------------------------------
    \16\ Data compiled from the Office of the United States Attorneys, 
National Caseload Data, FY 2021 Data Files, and Pacer.gov
---------------------------------------------------------------------------
    These data indicate that convictions for trafficking of Native 
American human remains under 18 U.S.C. 1170 (a) and funerary objects 
under 18 U.S.C.  1170 (b) are relatively infrequent but have continued 
since NAGPRA was enacted. Convictions for trafficking of Native 
American sacred objects and objects of cultural patrimony under 18 
U.S.C.  1170 (b) are limited to 1993 to 2005, and further all were 
convicted in the United States District Courts for the Districts of New 
Mexico, Arizona, and Utah. The single not guilty verdict in 2004 stands 
out. Several factors seem to be responsible for this pattern. First, 18 
U.S.C.  1170 (b) convictions requiring proof that the cultural items 
were obtained in violation of NAGPRA are just more difficult. Second, 
the not guilty verdict in 2004 seems to reflect a chilling effect of 
the Ninth Circuit's interpretation of the definition of ``Native 
American'' in Bonnichsen. Third, the localization of convictions for 
illegal trafficking of Native American sacred objects and objects of 
cultural patrimony correlates with the activities of the Four Corners 
Interagency ARPA Task Force in the early 1990s and the continued 
activities of the law enforcement personnel involved in that project 
into the early 2000s. Last, during the 2010s, auctions of Native 
American sacred objects and objects of cultural patrimony appear to 
have moved outside of the United States, primarily to France.
    Addressing this pattern requires a multi-faceted approach. First, 
we ask the committee to amend the definition of ``Native American'' as 
previously shown to provide a uniform and clear standard for the 
prosecution of trafficking cases. Second, we request the committee to 
amend 18 U.S.C.  1170 requiring the government to show beyond a 
reasonable doubt the trafficked human remains and other cultural items 
were obtained without right of possession:

        (a) Whoever knowingly sells, purchases, uses for profit, or 
        transports for sale or profit, the human remains or other 
        cultural items of a Native American without the right of 
        possession to those remains or items as provided in the Native 
        American Graves Protection and Repatriation Act shall be fined 
        in accordance with this title, or imprisoned not more than 12 
        months, or both, and in the case of a second or subsequent 
        violation, be fined in accordance with this title, or 
        imprisoned not more than omit--5 10 years, or both.

        Omit--(b) Whoever knowingly sells, purchases, uses for profit, 
        or transports for sale or profit any Native American cultural 
        items obtained in violation of the Native American Grave 
        Protection and Repatriation Act shall be fined in accordance 
        with this title, imprisoned not more than one year, or both, 
        and in the case of a second or subsequent violation, be fined 
        in accordance with this title, imprisoned not more than 5 
        years, or both.

    Third, we request the committee to establish and fund an 
interagency investigative effort like the Four Corners ARPA Task Force 
that will focus specifically on stopping illegal trafficking of Native 
American human remains and cultural items. Last, we request that the 
Senate pass the Safeguard Tribal Objects of Cultural Patrimony Act to 
stop the illegal export of Native American sacred objects and objects 
of cultural patrimony. Taken together, these five actions will clarify 
the statutory prohibition, provide the necessary expertise to 
investigate offenses, and chill the overseas market for Native 
ancestors and sacred objects.
Administrative Placement of NAGPRA Implementation Responsibilities
    In 2020, then-Representative Haaland introduced H.R. 8298 to amend 
NAGPRA. One of her key proposals to was to redelegate enforcement and 
other activities previously assigned to the National Park Service to 
the Office of the Assistant Secretary for Indian Affairs instead. 
NAGPRA is clearly Indian law, not only is it enshrined under Title 25 
of the United States Code with oversight by this committee, but Indian 
Tribes are the obvious and primary beneficiaries. Implementation of 
NAGPRA should be administered accordingly and not under the rubric of 
``cultural resources.'' We recognize that Secretary Haaland has the 
authority to implement this redelegation by means of Secretarial Order 
with follow-up revision of the Departmental Manual. If, for some 
reason, this change is not implemented in a timely fashion, we request 
that this committee amend 25 U.S.C.  3013 as follows:

        25 U.S.C.  3013. Implementation and Enforcement

    (a) The Office of the Assistant Secretary for Indian Affairs shall 
be the office for implementation and enforcement and other activities 
delegated by the Secretary.

    (b) The United States district courts shall have jurisdiction over 
any action brought by any person alleging a violation of this chapter 
and shall have the authority to issue such orders as may be necessary 
to enforce the provisions of this chapter.

NMAI Act Judicial Jurisdiction and Enforcement
    An additional issue we request you consider is the process for the 
return of Native American sacred objects and objects of cultural 
patrimony from the Smithsonian Institution. At least one group of 
Indian Tribes has unsuccessfully tried to recover such items from the 
National Museum of Natural History and has exhausted their 
administrative appeals, despite a unanimous recommendation to 
repatriate from the Smithsonian's own repatriation advisory committee. 
In such a situation under NAGPRA, an Indian Tribe would be able to 
challenge the failure to repatriate such cultural items to the United 
States District Courts (25 U.S.C.  2013). However, the NMAI Act does 
not include a similar grant of jurisdiction. NATHPO recommends amending 
the NMAI Act to add the following provision:

        20 U.S.C.  80 q-16. Jurisdiction and Enforcement. The United 
        States district courts shall have jurisdiction over any action 
        brought by any person alleging a violation of this Act and 
        shall have the authority to issue such orders as may be 
        necessary to enforce the provisions of this Act.

    We thank you for the opportunity to testify as part of this 
oversight hearing, and we commend the committee for this opportunity to 
assess NAGPRA, with intent to enhance Indian Tribes' and Native 
Hawaiian organizations' ability to protect grave sites and reclaim 
their ancestors, funerary objects, sacred objects, and objects of 
cultural patrimony.

    Senator Murkowski. Thank you, Dr. Grussing.
    Now we will turn to Dr. Rosita Worl. Welcome to the 
Committee, and thank you for making the long travel.

 STATEMENT OF ROSITA WORL, Ph.D., PRESIDENT, SEALASKA HERITAGE 
                           INSTITUTE

    Dr. Worl. Aan, yatgu saani. Most noble Chair Senator 
Schatz, and other Committee members, and if I may, including 
our own Alaska Senator, beloved and respected Senator 
Murkowski, Aanshawatk'i, Lady of the Land, of the Deisheetaan 
clan, I am honored to have this opportunity to speak to you 
today.
    In honor of my ancestors, and in accordance with our 
cultural protocols, may I tell you who I am in Tlingit: Lingit 
x'einax Yeidiklats'okw ka Kaahani ax saayi. Shangukeidi ka 
Chaak' naa xat sitee. Kawdliyaayi Hit aya xat. Lukaax.adi 
dachxaank aya xat.
    My Tlingit names are Yeidiklats'okw and Kaahani. I am of 
the Shankgukeidi clan and the Eagle moiety. I am from the House 
Lowered from the Sun in Klukwan, Alaska. I am a Grandchild of 
the Lukaax.adi clan. In English, I am known as Rosita Worl and 
I serve as president of the Sealaska Heritage Institute. May I 
thank Senator Murkowski for that wonderful introduction.
    I was privileged to serve on the NAGPRA Review Committee 
for 13 years, from 2000 to 2013, including serving as its 
Chair. From my own work with NAGPRA and from the multitude of 
voices I heard from Native Americans across the Country and 
from Hawaiians during my 12-year tenure, I came to appreciate 
that NAGPRA is one of the most significant legislative acts in 
our history.
    Congress recognized the significance of cultural property 
held by museums and other entities. They understood the 
traumatic harm that had come from the expropriation of our 
sacred objects and our ancestral human remains from our 
homelands; and then the need to return them to their original 
owners and descendants.
    First, I would like to go on record as supporting 
Representative Haaland's proposed legislation, H.R. 8298, to 
amend NAGPRA, to move the enforcement office to the Bureau of 
Indian Affairs, to increase civil monetary penalties for 
failure to follow the processes established by that Act, and to 
protect confidential information.
    Secondly, I would like to offer a series of recommendations 
for your consideration. First, I would like to have it 
clarified that Alaska Native Corporations are eligible to 
participate in the Native American Protections and Repatriation 
Act. And Madam Vice Chair, I have appended information on that 
background.
    I would also recommend and allow for the reburial of 
ancestral human remains at the site from which they were taken. 
Often, we are told to sneak onto Federal lands to rebury our 
ancestors from the original site from which they were taken. We 
do not believe that this is appropriate.
    Third, we would like to amend NAGPRA to require review 
committee findings in dispute as mandatory rather than 
advisory. Tribes go to a great deal of effort and expense to 
bring the case before the committee, a committee comprised of 
scientists, museum professionals, and tribal members, without 
any guarantee that the committee's finding will be acted upon.
    Four, a discrete category of funding to support disputes. 
And then increase NAGPRA funding for tribes and museums. I know 
that this is a consistent recommendation of the review 
committee.
    Madam Vice Chair, I have also outlined a number of comments 
on the draft proposed rules. We have reviewed the National 
Association of Tribal Historic Preservation Office's letter of 
September 10th, 2021, which I have appended to my testimony. We 
want to thank, first of all, the Secretaries for their support. 
We would like to go on record as supporting the tribal 
officers' position on the draft proposed rules.
    However, Madam Vice Chair, we do have a number of 
recommendations that we would like to submit for your 
recommendation in our written testimony. So, gunalcheesh.
    [The prepared statement of Ms. Worl follows:]

Prepared Statement of Rosita Worl, Ph.D., President, Sealaska Heritage 
                               Institute
    Aan yatgu saani. Most Noble Chair Senator Schatz and other 
committee members; and if I may, including our own Alaska Senator 
Murkowski, or as she is known to us, Aanshawatk'i, Lady of the Land, of 
the Deisheetaan clan, I am honored to have this opportunity to speak to 
you today.
    In honor of my ancestors, and in accordance with our cultural 
protocols, may I tell you who I am in Tlingit:

    Lingit x'einax Yeidiklats'okw ka Kaahani ax saayi.
    Shangukeidi ka Chaak' naa xat sitee.
    Kawdliyaayi Hit aya xat.
    Lukaax.adi dachxaank aya xat.
    My Tlingit names are Yeidiklats'okw and Kaahani.
    I am of the Shankgukeidi clan and the Eagle moiety.
    I am from the House Lowered from the Sun in Klukwan, Alaska.
    I am a Grandchild of the Lukaax.adi clan.

    In English, I am known as Rosita Worl and I serve as president of 
the Sealaska Heritage Institute.
    I was privileged to serve on the NAGPRA Review Committee for 13 
years, from 2000 to 2013, including serving as its Chair. From my own 
work with NAGPRA and from the multitude of voices I heard from Native 
Americans across the country and from the Hawaiians during my twelve-
year tenure, I came to appreciate that NAGPRA is one of the most 
significant legislative acts in our history. Congress recognized the 
significance of tangible and intangible cultural property held by 
Native Americans; the traumatic harm that had come in the expropriation 
of cultural and sacred objects and ancestral human remains from Native 
American homelands; and the need to return those sacred objects and 
ancestral remains to their original owners and descendants.
    First, I would like to go on record as supporting Representative 
Haaland's proposed legislation H.R. 8298: To amend NAGPRA to move the 
enforcement office to the Bureau of Indian Affairs; to increase the 
civil monetary penalties for failure to follow the processes 
established by that Act; and to protect confidential information.
Draft Proposed Rules
    We have had the opportunity to review the National Association of 
Tribal Historic Preservation Officers (NATHPO) letter of September 10, 
2021, on the Draft Proposed Rules to Assistant Secretary Indian Affairs 
Newland and Assistant Secretary Estenoz for Fish and Wildlife and Parks 
(attached as Appendix B). * We would like to go on record as supporting 
the NATHP Officers position on the Draft Proposed Rules. However, we 
would like to emphasize the following points:
---------------------------------------------------------------------------
    * Appendix A and B have been retained in the Committee files.
---------------------------------------------------------------------------
 10.5 Discovery
    Subsections 10.5 (b) and (c) give the impression that all or most 
discoveries occur as the result of intentional ground disturbances. 
These sections must also acknowledge and consider that often 
discoveries result from unintentional ground disturbances caused by 
natural forces (storms and floods) and unanticipated outcomes of human 
activity (for example, cleaning out culverts, or the discovery of 
illegal and unauthorized excavations of Indian graves). In the early 
2000s, a national park in Pennsylvania experienced all of these events 
that required a response on the part of park officials.
    We strongly object to the removal of the requirement by the federal 
official to notify and initiate consultations with any known lineal 
descendant and likely culturally affiliated Indian Tribes or Native 
Hawaiian Organizations within three working days of receipt of a 
written confirmation of a discovery. The draft proposal authorizes the 
appropriate official to take specific actions regarding the discovered 
cultural items, including stabilizing or covering them, evaluating the 
potential need for further excavation, and certifying that the ground-
disturbing activity may proceed with no input from lineal descendants 
or affiliated tribes. This flies in the face of the purpose of NAGPRA, 
which is to provide for the meaningful participation of lineal 
descendants and Indian tribes in the identification and disposition of 
their cultural items. Timeliness is also crucial; such notification 
must occur within a tight timeframe because an immediate response is 
often necessary and appropriate to ensure the protection and respectful 
treatment of the cultural item(s).
    We strongly and respectfully request that the proposed rule 
reinstate the requirement for a written Plan of Action that has been 
removed from this section. A Plan of Action, developed in consultation 
with lineal descendants and Indian Tribes, will specify the appropriate 
response to a discovery including the best methods and means for 
stabilizing and protecting cultural items in situ, how to treat any 
items that have been recovered after exposure, what steps will be taken 
to evaluate the potential need for further excavation, and how the 
decision will be made to certify, in the case of intentional 
excavations, that ground-disturbing activities may continue. As written 
(Subsections 10.5 (c), (d) and (e)), these duties are the 
responsibility of the appropriate federal official.
    We emphasize that the written Plan of Action is a crucial document 
memorializing a consultation process that must be made part of the 
discovery procedure for the responsible federal official. In our view, 
the requirement for a comprehensive agreement ( 10.4 (b)) is 
duplicative and could be dropped in favor of highlighting and 
foregrounding the Plan of Action developed through tribal consultations 
and in response to specific discovery situations that are or may 
encountered. Consultation best practices are that such discussions take 
place early in the process and that they be comprehensive of situations 
at hand. There is no reason to have a comprehensive agreement AND a 
plan of action. In practice, a comprehensive agreement looks like a 
plan of action.
 10.8 General
    We concur with all of the NATHPO comments about this section and 
provide this commentary: The elimination of the words ``or possession'' 
in the phrase, ``in the possession or control over holdings or 
collections'' of Native American cultural items departs from statutory 
language and oversimplifies and obscures a problem inherent to the 
NAGPRA process necessary for the completion of inventories and 
summaries. It seems that this draft rule attempts to correct this issue 
by including a definition of ``control'' which does not succeed in 
correcting the problem. The issue is that museums and repositories 
sometimes have collections in their possession that can be traced to 
other institutions and individuals (such as federal agencies, states, 
universities, contractors, and others) that deposited them in the 
holding museum, but do not exercise control over them. This has caused 
problems during implementation in that the museum or institution in 
possession of the items claims no responsibility for carrying out the 
inventory and summary provisions of NAGPRA, while the entity 
responsible for the deposit claims they are not responsible either. 
Sometimes the collections have been in the possession of the holding 
institution so long that which institution has ``control'' is in doubt. 
This problem was reported during the first years of NAGPRA 
implementation and remains at issue. For this reason, we strongly 
recommend that the draft rule retain the statutory language.
    We further point out that subsections  10.8 (b-d) attempt to 
resolve this issue for federal agencies but do not provide a solution 
for collections in other types of museums and repositories, or that 
cannot be tracked back to a federal agency. The need for  10.8 (d) 
Informal conflict resolution indicates that this is a continuing 
problem. What is to suggest that an informal process will resolve the 
issue that has not been resolved in 50 years?
    Finally, as stated in the NATHPO letter, we also point out that the 
vague requirement of a ``statement'' in  10.8 (c) does not satisfy the 
statutory requirement for a summary or inventory which should be 
reported to the affiliated tribes and the National NAGPRA program. We 
refer you to the NATHPO letter for their comment on this topic.

     10.9 (i)(3): This subsection appears to extend the scientific 
study exemption that in the statute only applies to Native American 
human remains to unassociated funerary objects, sacred objects, and 
objects of cultural patrimony. This proposal is inconsistent with the 
statute and adverse to tribal interests. We request that 10.9 (i)(3) be 
deleted in its entirety.

     10.10 (c)(3): We request the insertion of these sentences at the 
end of this paragraph:

    ''Upon receiving a request to consult regarding human remains and 
associated funerary objects by an Indian tribe or Native Hawaiian 
organization, the museum or federal agency must immediately stop any 
ongoing scientific study of such human remains and associated funerary 
objects and refrain from authorizing the initiation of new scientific 
study of such remains or associated funerary objects or other means of 
acquiring or preserving additional scientific study information from 
such remains and objects. The continuation of existing scientific study 
or data collection or the initiation of new studies shall be a topic of 
consultation with the requesting Indian tribe or Native Hawaiian 
organization, and the restrictions noted in the previous sentence may 
be modified with the mutual consent of the consulting parties.''

     10.10 (h) requires a museum or federal agency to send a written 
repatriation statement that conveys control of human remains and 
associated funerary objects to a requesting lineal descendant, Indian 
Tribe, or Native Hawaiian organization. Significantly, this requirement 
includes funerary objects that are associated with human remains which 
are associated with the requesting party through geographical 
association. We support this change.

     10.11 (b)(2) requires the Secretary, after reviewing all relevant 
information, to determine if each alleged failure to comply is 
substantiated or not, and to determine if a civil penalty is an 
appropriate remedy. We strongly support this change.

     10.11 (g) We request that the second sentence of  10.11 (g) be 
revised to read: ``The daily penalty amount shall not exceed $1,408 per 
day for each failure to comply, subject to .''

     10.12 Review Committee We support the recommendations of NATHPO.

    Recommendations:

    I respectfully offer the following recommendations for your 
consideration:

        1) Clarify that Alaska Native Corporations are eligible to 
        participate in the Native American Graves Protection and 
        Repatriation Programs (See Appendix A).

        2) Allow for the reburial of ancestral human remains at the 
        site from where they were taken. Tribal officials have 
        expressed the wish to rebury remains as close as possible to 
        their original resting place rather then remove them to the 
        present location of the tribe. This preference results from the 
        historical situation that many tribes have experienced, that of 
        forced removal from their original homeland. There is a strong 
        belief that a tribe's health and well-being is dependent on how 
        well their ancestors have been treated, and taking remains away 
        from their original homeland is another significant form of 
        displacement and disturbance.

        3) Amend NAGPRA to require Review Committee Findings in 
        Disputes as mandatory rather than advisory. Museums are not 
        compelled to observe the findings of the Review Committee, 
        which calls into question the effectiveness of these 
        proceedings. Tribes go to a great deal of effort and expense to 
        bring a case before the Committee, without any guarantee that 
        the Committee's Findings will be acted upon. In our experience 
        (two cases), the museums either ignored the Committee's 
        findings or altered them to suit their purposes. This provision 
        (Sec. 8) is useful for authorizing an opportunity for a tribe 
        to present its case to qualified experts, but ultimately the 
        value of the effort is in question.

        4) Provide a discrete category of funding to support disputes. 
        Disputes are very expensive undertakings that require an outlay 
        of significant financial resources in staff time, preparation 
        of statements by knowledgeable tribal experts, fees for 
        academic experts in a number of fields, lawyer fees, and travel 
        expenses for all participants. Thus, tribes must commit a 
        substantial financial sum to organize, prepare for, and 
        participate in a dispute hearing in the form of time and 
        expertise. This is an unfunded mandate, and while the process 
        may be beneficial for the repatriation process, it places a 
        large burden on tribes that do not have such funding available 
        in their ongoing operational budgets.

        5) Increase NAGPRA funding for tribes and museums. This issue 
        has been a regular and ongoing concern of tribes and museums 
        since the passage of NAGPRA, and it is a regular recommendation 
        of the NAGPRA Review Committee in their annual reports to 
        Congress. We support the statements of the Committee on behalf 
        of participating tribes and museums, and request that 
        additional funding be provided to support the participating 
        institutions.

    Thank you for this opportunity to comment and share our views and 
recommendations.

    Senator Murkowski. Gunalcheesh, Dr. Worl.
    Until Chairman Schatz gets back, I will begin the 
questioning. Dr. Worl, let me begin with you. First, I 
mentioned in my opening my appreciation for your work, not only 
in Alaska, but what you have done as the former chair on the 
NAGPRA review committee for the Department.
    As you know very well, implementation of NAGPRA in Alaska 
can be challenging; it can be different than we see elsewhere 
in the Country. We have unique tribal government and management 
structures that just make it different. We hear in this 
Committee a lot about how it is different, where you may have 
multiple entities that play complementary roles in order to 
determine what the culturally appropriate next steps may be 
when we are dealing with sacred remains or funerary objects.
    You have given a few recommendations already to the 
Committee. But recognizing that because of Alaska's unique 
tribal history and the unique aspects, when we were talking 
about NAGPRA's application to Alaska, you have indicated that 
ANCs should be eligible. If you can speak to that specifically, 
and in the ways that tribes, ANCs, and non-profits can work 
together so that NAGPRA does work for Alaska. Let's go a little 
Alaska specific, if we may.
    Dr. Worl. Thank you, Madam Chair. I will say thank you also 
for acknowledging that in the last 50 years, Alaska has 
developed different institutional arrangements than that of our 
lower 48 brothers and sisters. We have for-profit corporations, 
we have tribes, over 220 tribes, we also have regional tribal 
organizations that administer health and housing and other 
kinds of services to our people.
    Native corporations were initially involved in the 
implementation of NAGPRA. We were eligible for some 20 years. 
And then I believe it was in 2010 that the GAO did a study and 
from that study the recommendation came out to that the Park 
Service should look at our eligibility. Then we were later 
advised that ANCs and us, like Sealaska Heritage Institute, 
implementing the social, cultural, educational responsibility 
of Alaska Native corporations, we were the ones that were 
implementing NAGPRA.
    So for some 20 years, we were very active in repatriation 
claims. As you know, collectors love Alaska Native material, 
culture, and a lot of that was collected from all over the 
world.
    So we found, we started to do an inventory of all of our 
cultural objects in museums. We finally quit when we reached 
almost 100,000. We were busy with doing repatriation claims, 
and we were very surprised when we were declared ineligible.
    We did a legal review, and we thought that we should have 
been declared eligible. But unfortunately, that was not the 
case. In our region, repatriation claims came to all but a stop 
except for our one regional tribe.
    So it has been a loss for us that we have not been able to 
continue this important work of seeking the returns of our 
sacred objects and our ancestors.
    Senator Murkowski. I want to make sure that we underscore 
that. Because the role that the ANCs had been playing, as you 
point out now, for two decades, had really helped facilitate 
not only the inventory but the ability to work on the 
repatriation efforts. Then once ANCs are deemed not eligible 
under this definition or through this read that GAO has 
provided, and Interior through Parks has adopted, now all of a 
sudden you have ANCs that are left out of the picture. Now it 
still means that your tribes can continue the efforts, the non-
profits can contribute the efforts for further repatriation.
    But you have limited the ability of an overlay of the 
tribal structure that has helped to facilitate much of the 
repatriation efforts to this point in time. So we are actually 
not only putting on pause but we are not able to move forward 
because ANCs are now limited in this definitional approach.
    Dr. Worl. Right.
    Senator Murkowski. Is that correct?
    Dr. Worl. That is absolutely correct. But in addition to 
halting the repatriation process, what was also halted was 
dealing with the trauma of the removal of our ancestral 
remains, dealing with the removal of our sacred objects. So we 
were not able to continue the path that we had been on in terms 
of our cultural healing from that trauma.
    So it had both the administrative, operative kind of 
things, but it also had an impact on our culture.
    Senator Murkowski. Thank you, Dr. Worl.
    The Chairman. [Presiding.] Senator Cortez Masto.

           STATEMENT OF HON. CATHERINE CORTEZ MASTO, 
                    U.S. SENATOR FROM NEVADA

    Senator Cortez Masto. Thank you, Mr. Chairman. I so 
appreciate the panel discussion today.
    In Nevada, we have had a few cases of high profile and 
costly litigation under NAGPRA. For example, in 2016, the 
Fallon Shoshone Tribe finally prevailed in a lengthy battle to 
repatriate remains that were over 10,000 years old, that DNA 
testing had associated with Native populations.
    So Ms. Beasley, let me start with you. One of the 
challenges that we have seen in Nevada is that there often has 
to be consultation with the BLM regarding repatriating items 
that are in university or museum possession. What we are 
seeing, unfortunately, is there is a lengthy timeframe within 
which the BLM consultation takes place.
    Is the Administration taking steps to make agencies more 
responsive? Can you respond to that?
    Ms. Beasley. Thank you for your question. The Department of 
the Interior is aware of the inconsistencies with the way that 
the law is interpreted and applied across the United States, 
including among Federal agencies. We believe that the proposed 
regulatory change will go a long way toward clarifying the 
roles and responsibilities of Federal agencies, as well as 
clarifying the timelines and the other requirements. So we are 
certainly aware of the issue and we hope that the proposed 
regulations will address some of those challenges.
    Senator Cortez Masto. Thank you. I appreciate your remarks.
    I also know the National Park Service just hired a full-
time investigator to enhance oversight and compliance with 
NAGPRA. Will you commit to working with our Committee in 
providing members with annual updates on the actions of the new 
investigator, or if there are challenges or more resources that 
are needed to make sure we are providing the response that is 
necessary?
    Ms. Beasley. As you mentioned, we recently hired the first 
full-time investigator for the national NAGPRA program. We look 
forward to continuing the work with the Committee on the 
implementation of the law.
    Senator Cortez Masto. Thank you. I appreciate that.
    This is for the panel members. I think it was Dr. Grussing 
who touched on this. One of the issues that has come up again 
and again is the lack of funding that has delayed efforts to 
fully realize NAGPRA goals. At the end of fiscal year 2020, $50 
million in grants had been issued since 1990, yet countless 
items still need to be repatriated.
    So to the panel, realistically, what type of funding 
commitment would be needed to finally see the goals of this law 
realized? Is anybody taking a look at that? Could you provide 
any input to Congress on how we can address that? We will open 
it up to the panel members, to anybody who wants to weigh in.
    Dr. Ortiz. This is Anna Maria Ortiz. I can speak to some of 
what happened in the wake of the GAO report in 2010. One of our 
recommendations was that agencies really figure out what they 
needed to do to implement the Act properly and develop 
timelines for doing so.
    We heard from agencies the time, including Fish and 
Wildlife Service, that it would take 28 years and millions of 
dollars to properly implement the Act, to go through all of 
their collections. When agencies submitted their timelines, 28 
years was, it was much shorter timelines that they told us, yet 
it was still eight, ten years estimated, and in many cases, 
agencies estimated that it would cost hundreds of thousands or 
even millions more than they currently had appropriated to 
implement the Act effectively.
    Senator Cortez Masto. Thank you. I appreciate that. Thank 
you again for this important discussion. I yield my time.
    The Chairman. Thank you, Senator Cortez Masto. Senator 
Cantwell?

               STATEMENT OF HON. MARIA CANTWELL, 
                  U.S. SENATOR FROM WASHINGTON

    Senator Cantwell. Thank you, Mr. Chairman, and thank you 
for holding this important hearing, and to Vice Chair 
Murkowski, with 29 federally recognized tribes in the State of 
Washington, I guarantee you this issue has come up many times. 
We have had sacred sites impacted and obviously the issues of 
tribal well-being and sovereignty, just a few years ago, it 
seems like.
    The Ancient One, the remains of the Ancient One were 
repatriated after several decades of investigation and 
research, so the different tribes and bands of the Columbia 
Plateau could lay them to rest. I don't know how many people 
remember this debate. But clearly, there was even at that 
moment lots of scientists and lots of differences of opinion 
about that.
    I also recall visiting burial grounds in Port Angeles, 
Washington, where a major DOT project was going in to build a 
graving dock, to help with repair of the Hood Canal Bridge. 
Literally the early stages of that development was the 
discovery of a 2,000-year-old village, Tse-whit-zen, that 
literally the construction and the building went on, still went 
on for months.
    The process failed us. The process did not resolve that 
issue. Maybe ultimately, legal fights would have resolved it. 
But somehow, we needed a process that would have resolved that 
instead of continuing the development on this site, once it was 
discovered we were building on top of a 2,000-year-old village, 
a major discovery.
    So I do want to ask, Dr. Grussing and Ms. Beasley, what 
other protections, and to Dr. Worl's point about making sure 
that there is a better process to resolving disputes, not just, 
oh, maybe we will have a hearing and maybe we won't have a 
hearing. And I get the framework of these entities that are 
currently involved.
    But these issues, particularly now that we have all sorts 
of different science involved, are way more complex than the 
process that we have today. I think that again, we had very 
major disputes about what we at that time referred to that, now 
I am saying the Ancient One, but Kennewick Man, and then a lot 
of dispute, and then this other instance.
    Also, we had a problem with one of our dams, so we had to 
draw down the water. And there were then exposed hundreds of 
burial sites, all along the Columbia. And how do we protect 
them, and how do we use this authority to make sure, without 
identifying where they were.
    So I want to ask what specific changes, Ms. Worl, Ms. 
Beasley, or Ms. Grussing would say that we need to implement 
that would help us on elevating the discussion and not 
bypassing it? And what to do to protect the locations from 
public information if that is so chosen? Whoever wants to 
start.
    Dr. Grussing. Dr. Worl, would you like to go first?
    Senator Cantwell. Yes, Dr. Worl, go ahead, and then we will 
go to our other witnesses.
    Dr. Worl. Well, as we know, the disputes are just really 
lengthy and costly. So I think we really need an assessment and 
coming up with some measures as how we can better work together 
on this. And consulting and informing tribal members 
immediately upon the discovery of any kind of human remains, 
that must remain in place.
    I am concerned that there may be some changes in the 
resolution, in the procedures that are proposed rules, that may 
alter that. We need to make sure that the tribes are there 
right away, and that we have a say in any kind of inadvertent 
discoveries.
    Senator Cantwell. Yes. And in the Tse-whit-zen case, the 
only avenue that the Lower S'Klallam had was to basically, 
well, a lawsuit. We kept saying, this isn't going to end well 
for either side. So let's figure out a path to figure out what 
to do here.
    Ms. Beasley?
    Ms. Beasley. Thank you. Again, we believe that the proposed 
regulation changes will go a long way toward addressing some of 
the challenges with NAGPRA with regard to streamlining the 
process, clarifying the rules and responsibilities, removing 
unnecessarily burdensome procedures, removing offensive 
language and so forth. We estimate that within a few years of 
enactment of the proposed rule changes 90 to 95 percent of 
responsive collections will be able to move through the 
process.
    We certainly would be happy to work with the Committee on 
technical assistance for any legislative changes that you might 
propose. I can tell you that some of the things that came up 
during consultation over the summer regarding the proposed rule 
that were concerns relate to the definition for Native American 
in the statute. Certainly concerns about protecting sensitive 
information, and there are a number of other more minor 
technical amendments for legislative history that could be 
addressed. We would be pleased to work with the Committee.
    Senator Cantwell. Thank you. I am out of time, Mr. 
Chairman, but if Ms. Grussing either has a quick comment or can 
submit something for the record, I would so appreciate it.
    Dr. Grussing. I would take a moment if that is okay. A 
critical issue here is the recognition of traditional knowledge 
and oral tradition as a valid form of knowing. I wanted to note 
that in the case of the Ancient One, the Ninth Circuit actually 
set really an unfortunate precedent with their choice of some 
phrasing. We would point to California NAGPRA law as a better 
approach to recognizing this equally valid form of knowledge to 
the methods of western science. I think that this outdated 
colonial approach to disposition of ancestors is also 
retraumatizing, and we can do better.
    Senator Cantwell. What was the language in that decision 
that was problematic?
    Dr. Grussing. Let's see, oral tradition accounts are not 
specific, reliable, or relevant enough, because they have been 
inevitably changed and context of transmission, because such 
traditions include myths that cannot be considered factual, 
because the value of such accounts is limited by concerns of 
authenticity, reliability, and accuracy, and because the record 
as a whole does not show where historical fact ends and mythic 
tale begins.
    Senator Cantwell. So we should throw out Greek myth, too, 
or what? Anyway, we should work on this, Mr. Chairman. Some 
people would say, who does this hearing relate to. There are 
lots of examples in the State of Washington where a better 
process would help us. We appreciate this rich culture and the 
oral traditions. I feel so fortunate to have had some of them. 
I feel like we should even be doing more.
    But anyway, let's work on it, I am happy to work with the 
Committee as the Committee moves forward. Thank you.
    The Chairman. Thank you very much, Senator Cantwell.
    Director Beasley, you testified that a greater percentage 
of collections have been repatriated to Hawaii and Alaska than 
have been completed in the lower 48. I don't want to get you in 
trouble by making you guess, but what accounts for the 
difference?
    Ms. Beasley. The variation is largely a result of the 
relationship between cultural affiliation and geographical 
association under NAGPRA. So you are correct, 97 percent of 
collections----
    The Chairman. Say that again in English.
    Ms. Beasley. Yes, sir. It has to do with the relationship 
between cultural affiliation and geographical location. So if 
you consider that in many parts of the lower 48, Indian tribes 
were forcibly removed from their ancestral homelands to new 
locations. So they were, as Dr. Worl so eloquently spoke to, 
effectively taken away from those physical locations. That is 
not so much the case in Alaska and Hawaii, where those cultural 
affiliations and geographical connections remain much more 
intact.
    The Chairman. So that theory would be relatively easy to 
test, because there are places in the lower 48 where tribes 
were not geographically displaced, and therefore, they would 
have a higher rate of repatriation? Is that your experience?
    Ms. Beasley. I don't know if I could speak to the specifics 
of that. At this time we can certainly look into that and 
report back to you. But revisions to the regulations that we 
are proposing would require museums and Federal agencies to 
complete the regulatory process, and would require them to 
consider both cultural and geographical affiliation. Again, 
within a few years of finalizing the regulations, we would 
expect that 90 to 95 percent of collections could complete the 
process. That would certainly be a much better statistic, and 
more along the lines of what we see in Hawaii and in Alaska.
    The Chairman. Got it. Okay, thank you.
    Chair Lindsey, thank you for taking the time. What 
qualifications do you think a Native Hawaiian organization 
should have in order to engage in the work under the NAGPRA 
statute? I don't want to use a legal term here, but who is 
legitimate in doing this work? How do you attain legitimacy? Is 
it ancestral knowledge? Is it lineage and genealogy? Is it 
geographic location? Is it study? Help me to understand how we 
determine who helps us to implement this law.
    Ms. Lindsey. Thank you, Senator. Under NAGPRA, a Native 
Hawaiian Organization or an NHO is defined as any organization 
that serves the interests of Native Hawaiians, and has a 
primary and stated purpose of provision of services to Native 
Hawaiians, and has expertise in Native Hawaiian affairs. These 
NHOs are able to make claims and consult on repatriation 
matters.
    However, this definition does not require that these NHOs 
actually consist of only Native Hawaiians. This has been 
problematic in the past, as OHA has witnessed a museum and 
recreational clubs trying to claim NHO status. As indicated in 
our written testimony, this could be addressed by amending the 
NHO definition to require that NHOs have Native Hawaiians in 
substantive policy making decisions.
    The Chairman. Thank you very much. I would like to work 
with you, Chair Lindsey, on this. And we will work with our 
Committee staff as well. The way the statute is written, it 
invites two people to set up a (c)(3) and represent themselves 
as representing Native people. And maybe they do. But there has 
to be a vetting process that has legitimacy both under 
statutory law but maybe more meaningfully in the culture.
    It is a tough thing, because you want to be as expansive 
and inclusive in a statute as possible. But if it allows two 
people to claim to have the legitimacy that they may or may not 
have, it becomes very difficult, especially for the Federal 
Government, to sort out who is legit and who is not.
    It is certainly not my job, and I wouldn't imagine Director 
Beasley wants that responsibility. But it is something we have 
to sort out as a community in consultation with Chair Lindsey 
and others who have a stake and deep knowledge in this area.
    Dr. Grussing, tribes are attempting to apply NAGPRA to 
repatriate human remains found in the cemeteries at Indian 
boarding schools, including Carlisle Industrial School in 
Pennsylvania. I am wondering if you can explain how NAGPRA 
would work in this context.
    Dr. Grussing. Thank you for that question, Mr. Chairman.
    We are so grateful for the light that is being shown on 
this issue after so long. I actually have my orange on today in 
solidarity because every child matters.
    NATHPO has addressed this question in our comments on the 
Secretary of the Interior's boarding school initiative. We will 
submit that for the hearing record.
    To summarize, though, the excavation of Native American 
human remains from any Federal lands requires compliance with 
NAGPRA. That means the Federal agency must comply with lineal 
descendants and affiliated Indian tribes before excavation, 
including a plan of action. The excavation itself must comply 
with the Archaeological Resources Protection Act. Control of 
the remains would be as specific in Section 3 of NAGPRA.
    Our understanding is that the Carlisle Indian Industrial 
School is located on Federal land. During the DOI boarding 
school consultations, we heard extensively from tribes that the 
Army is claiming exemption from NAGPRA requirements at this 
site, but we are not aware of any basis for that claim.
    The Chairman. Thank you very much.
    Director Beasley, we all know that yesterday, Interior 
announced the appointment of a full-time civil penalties 
investigator. Of course, that is good news.
    The question is, what is the exact number of allegations 
related to NAGPRA compliance that NPS has received? Is there a 
backlog? Given that we haven't had a full-time investigator 
here, is this in response to an understanding that we are 
behind the eight ball, or where are we? If you don't know the 
numbers off the top of your head, you can consider this a 
formal request to get us a status report on the backlog of 
complaints or investigations.
    Ms. Beasley. Thank you, Mr. Chairman. I don't have the 
exact numbers before me. But we will certainly follow up with 
you for the record on that matter.
    Hiring a full-time civil investigator was a recognition of 
the importance of that specific role and responsibility that we 
have. We were also looking ahead to, as we move forward with 
these proposed regulatory changes, we would anticipate an 
increase in civil penalty investigations. So it certainly, I 
think, is evidence of the degree to which we take that role and 
responsibility very seriously. We will certainly follow up with 
more specifics about where we are.
    The Chairman. Just to put a fine point on it, there are two 
ways to do this. They are both legitimate. One is, because it 
is important, and it is certainly worthy of a full-time person, 
or of ten, right? That is number one. Number two could be that 
we are actually sitting on a backlog and we can't even 
investigate them properly. I am not asking you to give me some 
number, but is there a backlog?
    Ms. Beasley. Again, I am not sure I am prepared to answer 
that question directly and specifically. We will follow up with 
you after the hearing.
    The Chairman. That is fine. I will let you off the hook 
here if when you give me your answer for the record, I get a 
yes or a no to the ``is there a backlog'' question. Is that 
fair?
    Ms. Beasley. Fair enough.
    The Chairman. Thank you.
    Vice Chair Murkowski.
    Senator Murkowski. Thank you, Mr. Chairman. This has been 
an important discussion this afternoon. I know that we are in a 
series of votes, so we are not going to probably have as much 
input from other colleagues on this. But I would like to think 
that there is going to be questions that are submitted for the 
record as well.
    Ms. Beasley, I want to ask about some of the things that I 
mentioned in my opening statement about the situation with 
regard to these pending actions on the individual remains. I 
indicated that, this is according to your department, there are 
still over 400 Native American individuals housed in 26 museums 
or Federal agencies pending consultation and notification. Can 
you give me an update on where things stand with pending 
actions related to the 406 individual remains? What is the 
update?
    Ms. Beasley. Yes, ma'am, thank you for your question. The 
national NAGPRA program has really detailed information on the 
status, and we would be pleased to follow up with you after the 
hearing to provide you with that specific information. I can 
tell you that the National Park Service recently published 
notices for repatriation of Alaskan ancestors from museums in 
New Jersey, Michigan, and California.
    I would also share that in 2020, we awarded an over $50,000 
grant to the Alutiiq museum in conjunction with the tribal 
coalition specifically to support research and repatriation 
requests for the 20 or 30 plus museums across the Country that 
are holding NAGPRA-eligible Alutiiq ancestors and cultural 
objects.
    Senator Murkowski. So, according, again, to the Department, 
since NAGPRA was enacted, apparently only 21 percent of museums 
subject to the Act have resolved all Native American human 
remains that are under their control. Is it accurate, then, to 
say that less than one-quarter of all the museums subject to 
NAGPRA are complying with the law? Or is this an accurate way 
to interpret what that 21 percent means?
    Ms. Beasley. That is a great question. As I mentioned in my 
testimony, and as you note, after plus years, less than half of 
the Native American ancestors that are in collections have been 
returned to their traditional caretakers, largely due to 
identification of those ancestors are culturally 
unidentifiable. So museums and Federal agencies still wield a 
significant amount of power in determining what will be 
repatriated.
    We hope that this imbalance can be corrected through the 
regulatory changes that we are proposing. And we hope that the 
Congress will support that effort by affirming in the hearing 
record that the purpose of NAGPRA is repatriation.
    Senator Murkowski. Repatriation, and returning their 
remains with the respect and dignity that should be afforded, 
absolutely.
    One final question for you, Director Beasley. This is what 
we have heard from the Native village of Chenega. They have 
written to the Department expressing some concern over some of 
the changes to NAGPRA that the Park Service is contemplating. 
They are worried that the effort to update and simplify notice 
procedures for discovery will result in less participation by 
impacted tribal communities. I think an overall concern that 
you are giving greater discretion in the hands of Federal 
officials to notify a tribe. It goes to what Dr. Worl was 
saying there, in terms of being able to be consulted right 
away.
    Has the Department responded to the concerns that have been 
raised by Chenega specifically?
    Ms. Beasley. So I want to emphasize that the Department is 
committed to strengthening, to the maximum extent possible, the 
requirements for consultation with Indian tribes, Alaska Native 
villages, and Native Hawaiian organizations on any discovery or 
excavation on Federal lands. The revisions to the regulations 
that would streamline the process and make clear what the steps 
are for Federal agencies and Federal land managers should 
assist both Indian tribes and Federal agencies through the 
process.
    To answer your question specifically, the Department does 
plan on publishing direct responses to all the comments that we 
have received from Indian tribes and Native Hawaiian 
organizations during consultation, including those that were 
submitted by Chenega. We hope that Chenega and other Alaska 
Native villages and corporations and organizations will provide 
additional feedback and actively participate in consultation 
once the proposed rule goes to publication.
    Senator Murkowski. Can I ask Dr. Worl to comment on that? 
Because what I am hearing here is that yes, yes, the Native 
village of Chenega will be consulted, but it will be after a 
period of time within which, for instance, Park Service, has 
had, they have been storing the remains or the artifacts.
    So I hear what you are saying, but I want to make sure that 
I hear Dr. Worl correctly too, that the concern is that there 
is a lag and there is discretion with the agency about when 
then to bring in the tribe.
    Dr. Worl. Thank you, Senator. I would like to refer you to 
subsections 10.5(b) and (c). These sections give the impression 
that all or most discoveries occur as a result of intentional 
ground disturbances. These sections must also acknowledge and 
consider that often discoveries result from unintentional 
ground disturbances caused by natural forces, storms, and 
floods, and unanticipated outcomes of human activity. For 
example, cleaning out culverts, or the discovery of illegal and 
unauthorized excavations of Indian graves.
    We strongly object to the removal of the requirement by the 
Federal officials to notify and initiate consultation with any 
known lineal descendant and likely culturally affiliated Indian 
tribe or Native Hawaiian organization within three working days 
of receipt of a written confirmation of discovery. So that is 
our reading of it, that there is that ambiguity. I think it 
needs to be clarified, and we need to ensure that there is 
immediate consultation.
    But the section in our opinion gives this other impression.
    Senator Murkowski. Thank you for clarifying that, Dr. Worl. 
I appreciate that.
    Mr. Chairman, I have no further questions other than to 
thank all of the witnesses, and contributions that they have 
made. Very important. I look forward to further work from the 
Committee here.
    The Chairman. I am an extraordinarily lucky person, but 
among the ways in which I am lucky is that as chairman, I get 
to work with Lisa Murkowski. It really is a pleasure to work 
with you and your staff. Thank you very much.
    Dr. Ortiz, I am going to have a number of questions for the 
record for a number of the witnesses. But I will just flag 
this, because I think it is really important as we consider any 
legislative work to do on a bipartisan basis. If you will take 
this for the record, are there any additional aspects of NAGPRA 
that GAO can help us to address. If you will take that for the 
record, I would appreciate it.
    If there are no more questions for our witnesses, members 
may also submit follow-up written questions for the record. The 
hearing record will be open for two weeks. I want to thank all 
the witnesses for their time and their testimony.
    This hearing is adjourned.
    [Whereupon, at 3:34 p.m., the hearing was adjourned.]

                            A P P E N D I X

 Prepared Statement of Mark Mitchell, Chairman, All Pueblo Council of 
                               Governors
    My name is Mark Mitchell, former Governor of the Pueblo of Tesuque 
and Chairman of the All Pueblo Council of Governors (APCG). The APCG 
represents the 20 Pueblo Nations of New Mexico and Texas. Each Pueblo 
exercises its own Sovereign authority to govern its affairs. The first 
recorded convening of this council dates back to 1598.
    Each generation of Pueblo leaders have utilized this body to 
collectively take action to address impositions and threats to our 
cultures, languages, and traditions. Pueblo leadership has identified 
the inhumane removal of our ancestors and their associated cultural 
items from their final resting places as acts of violence and crimes 
against humanity. Pueblo leadership also recognizes that many of our 
items of cultural patrimony and sacred objects-known to us as living 
beings-are taken from our communities and trafficked domestically and 
abroad.
    On their behalf, and in the interest of protecting our foremothers 
and forefathers, cultural ways of life, and present and future 
generations, I express my appreciation for the Senate Committee on 
Indian Affairs' Oversight Hearing titled ``The Long Journey Home: 
Advancing the Native American Graves Protection and Repatriation Act's 
Promise After 30 Years of Practice.'' It is necessary that the Congress 
strengthen the Native American Graves Protection and Repatriation Act 
(NAGPRA).
    We look forward to the opportunity to continue to work with the 
Committee to strengthen this historic and meaningful legislation. One 
important step in the right direction would be passage of the Safeguard 
Tribal Objects of Patrimony (STOP) Act of 2021, H.R. 2930 and S. 1471, 
now before the Senate after House passage. However, we also look 
forward to partnering with the Committee on designing and advocating 
for comprehensive NAGPRA amendments to improve its functioning for the 
benefit of all Tribal Nations.
                                 ______
                                 
  Prepared Statement of Theresa Pasqual, Tribal Historic Preservation 
                        Officer, Pueblo of Acoma
I. Pueblo Calls on Committee to Pursue NAGPRA Amendments
    The Pueblo appreciates the opportunity to present information to 
the Committee on the important topic of strengthening the Native 
American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C.   
3001-3013, 18 U.S.C.  1170. The Pueblo has prioritized protecting our 
tribal cultural heritage items and our sacred places, and through this 
work we have developed expertise in these areas. Indeed, we have 
championed the Safeguard Tribal Objects of Patrimony (STOP) Act of 
2021, H.R. 2930 and S. 1471, to fill gaps in existing laws that we 
experience directly.
    We have seen firsthand that NAGPRA is an important tool for 
bringing our ancestors and cultural items home. NAGPRA serves as an 
example of the federal government taking concrete actions to honor its 
trust obligations to Tribal Nations in the context of cultural 
preservation and revitalization.
    But we have also seen that NAGPRA has many shortcomings and would 
benefit from statutory amendments to strengthen and clarify its scope 
and legal effects. Therefore, we hope that this oversight hearing is 
the first of many conversations between the Committee, Tribal Nations, 
and other experts regarding how to strengthen NAGPRA to improve its 
functioning. We believe these conversations can lead to concrete 
changes to NAGPRA that will significantly benefit Indian Country.
II. Examples of Needed NAGPRA Amendments
    There are many areas in which NAGPRA's statutory language could be 
strengthened to more fully and robustly protect tribal cultural 
heritage items. Below we have provided some examples of areas for 
improvement. However, we encourage the Committee to engage in further 
tribal consultation and information gathering to gain a more 
comprehensive understanding of potential beneficial statutory changes.
Cultural Affiliation
    NAGPRA utilizes the phrase ``cultural affiliation'' in important 
and potentially gatekeeping ways. ``Cultural affiliation'' plays a 
significant role in determining who will receive an ancestor or 
cultural item upon repatriation from a museum or federal agency, 25 
U.S.C.  3005(a), or upon disposition after removal from federal or 
tribal lands, 25 U.S.C.  3002(a)(2). ``Cultural affiliation'' also 
shapes how items are identified and how Tribal Nations receive notice 
of their inclusion in museums' and federal agencies' inventories, 25 
U.S.C.  3003, and summaries, 25 U.S.C.  3004. Importantly, cultural 
items that museums and federal agencies deem to have a cultural 
affiliation are subject to NAGPRA's repatriation process. See 25 U.S.C. 
 3005.
    One of NAGPRA's most serious weaknesses is the way a ``cultural 
affiliation'' finding or lack thereof can derail a repatriation. 
Museums and federal agencies use NAGPRA's language as currently drafted 
to conclude that a cultural item lacks a cultural affiliation such that 
the duty to repatriate is not triggered. See 25 U.S.C.  3005(a). When 
coupled with NAGPRA's lack of sufficient oversight regarding such 
cultural affiliation determinations, this is a major loophole in 
NAGPRA's implementation.
    One potential solution is strengthening NAPGRA to clarify that a 
museum or federal agency's legal obligation to repatriate, 25 U.S.C.  
3005(a), any tribal cultural heritage item is triggered if that item 
qualifies as a ``cultural item'' under NAGPRA, 25 U.S.C.  3001(3), 
especially in the context of Native American ancestors and their 
associated funerary objects. Determining which tribal recipient is most 
closely culturally affiliated for purposes of receiving that cultural 
item should be a separate question.
    Further, decisionmaking authority regarding NAGPRA's application to 
a particular item and its repatriation should be placed in the hands of 
Tribal Nations, the Review Committee, and the Department of the 
Interior rather than in the hands of museums and federal agencies. 
Determinations of whether a tribal cultural heritage item is a ``Native 
American'' ``cultural item'' covered by NAGPRA and its ``cultural 
affiliation'' should be made based on all available evidence, including 
Tribal Nations' expertise. Where museums and federal agencies are 
permitted any decisionmaking authority, their decisions should be 
subject to review before the Review Committee, the Department of the 
Interior, and the courts, and Tribal Nations must be able to initiate 
such review.
Provenance Requirements
    Although NAGPRA prohibits trafficking of ancestors and cultural 
items, 18 U.S.C.  1170, these prohibitions only apply to ancestors for 
whom the offender lacks a right of possession, 18 U.S.C.  1170(a), and 
to cultural items obtained in violation of NAGPRA, 18 U.S.C.  1170(b). 
In practice, this usually means prosecution is not possible unless the 
federal government, in conjunction with the Tribal Nation, can 
demonstrate the cultural item was removed from tribal or federal land 
after NAGPRA's 1990 enactment date. See 25 U.S.C.  3002(a), (c). Thus, 
without establishing these provenance requirements, an item that has 
enough cultural significance to qualify as a ``cultural item'' under 
NAGPRA, 25 U.S.C.  3001(3), still cannot be protected from 
trafficking. \1\ NAGPRA's trafficking prohibitions should apply to all 
cultural items regardless of the date they were removed or the land 
from which they were obtained.
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    \1\ The Archaeological Resources Protection Act (ARPA) has similar 
provenance issues. See 16 U.S.C.  470ee(b)(1); see also 16 U.S.C.  
470ee(a), (e). One half-measure to fixing the ARPA provenance issues is 
adding ``tribal law'' to amend its provisions stating that ARPA 
prohibits trafficking of ``archaeological resources,'' see 16 U.S.C.  
470bb(1), that were removed before ARPA was enacted but in violation of 
federal or state law in place at the time, 16 U.S.C.  470ee(b)(2), 
(c).
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    Separately, NAGPRA should be amended to make clear that museums' 
and federal agencies' inventory, summary, and repatriation obligations, 
25 U.S.C.   3003-05, are not limited by any provenance requirements, 
as some have wrongly read provenance requirements into those 
provisions.
Reinterment on Federal Lands
    The Pueblo seeks amendments to NAGPRA that direct federal agencies 
to take possession of ancestors and other cultural items for 
reinterment at Tribal Nations' requests. Many Tribal Nations seek 
reinterment locations that are as close as possible to the location 
from which an ancestor or cultural item was taken, and public lands are 
often the best option. However, many federal agencies refuse to accept 
ancestors and other cultural items for reinterment when they cannot be 
proven to have come from the boundaries of the particular area of 
federal lands. NAGPRA should be amended to require such reinterment.
Tribal Nation Funding
    The Pueblo recommends additional funding for Tribal Nations and 
others to more fully implement NAGPRA. While NAGPRA currently 
authorizes grants to Tribal Nations for the purpose of assisting in 
repatriations, 25 U.S.C.  3008(a), funding levels have not been 
sufficient, and such funds often focus on museum repatriations rather 
than other aspects of NAGPRA enforcement. For example, additional 
funding could be used to find solutions to the issue of finding a 
proper location for reinterment, discussed above, by supporting 
discussions, planning, mapping, research, and identification of 
suitable lands.
International Trafficking
    The current federal laws often used to protect tribal cultural 
heritage items from trafficking, including NAGPRA and the 
Archaeological Resources Protection Act (ARPA), 16 U.S.C.   470aa-
470mm, currently leave many tribal cultural heritage items unprotected 
from export and trafficking abroad. The Pueblos in particular have seen 
many of our sacred tribal cultural heritage items set for auction 
overseas and out of our reach, and it is for this reason that the 
Pueblo has championed the STOP Act. The STOP Act aims to stop the 
export and facilitate the international repatriation of tribal cultural 
heritage items already protected under these federal laws. The STOP Act 
passed the House with bipartisan support in December 2021 and is now 
before the Senate awaiting passage. A very similar version of the STOP 
Act passed the Senate in 2020 via unanimous consent. We call on the 
Committee to secure passage of the bill as soon as possible.
Enforcement
    Stricter enforcement of NAGPRA and stricter penalties are necessary 
to ensure compliance with NAGPRA. The STOP Act would increase NAGPRA 
trafficking penalties. NAGPRA's provisions authorizing the Secretary of 
the Interior to assess civil penalties against museums and federal 
agencies for violations of their NAGPRA obligations should also be 
strengthened. See 25 U.S.C.  3007. Further, NAGPRA must provide Tribal 
Nations with remedies whereby we can ensure enforcement of NAGPRA-as 
protecting our own tribal cultural heritage items is ultimately our 
responsibility.
    Thank you for the Committee's attention, and we urge you to 
continue this important work. We hope to continue dialogue with you 
regarding ways to strengthen NAGPRA.
                                 ______
                                 
    Prepared Statement of the Association on American Indian Affairs
    Dear Chair Schatz and Vice Chair Murkowski,
    We are so grateful for your attention to the Native American Graves 
Protection and Repatriation Act (NAGPRA). While the Association on 
American Indian Affairs is not a ``Tribe'' to which the government owes 
a trust relationship to--and we in no way wish to co-opt this process--
the Association feels strongly that our collaborative work with Native 
Nations and expertise must be shared with you fully. The Association is 
the oldest non-profit serving Indian Country, and is celebrating our 
100 years of service, since 1922! The Association has been a leading 
organization protecting Sacred Places, and cultural and religious 
practices since its founding. Regarding NAGPRA and our repatriation 
efforts, we have devoted significant resources analyzing and evaluating 
the effectiveness of the Act as well as its regulations, including how 
the Act can be improved to better reflect Congress' intent.
    The Association's work in repatriation and protecting the Sacred is 
led by our grassroots efforts with Tribal practitioners, museums, 
academics, lawyers, artists, federal agencies and others on the ground. 
The Association's Annual Repatriation Conference brings practitioners 
and specialists together from diverse backgrounds and provides training 
and technical assistance to Native Nations and institutions. The 
Association's 7th Annual Repatriation Conference was held virtually 
over three weeks in November 2021 with 700 participants. This year, the 
8th Annual Repatriation Conference will be a hybrid event held October 
11, 12 & 13.
    The Association also has a Repatriation Working Group, made up of 
diverse experts involved in repatriation efforts, and a Tribal Partners 
Working Group, a closed group that provides a safe space to discuss 
cultural and spiritual, as well as practical issues regarding 
repatriation and protecting the Sacred. These grassroots groups support 
the direction of our organization's activities, advocacy and training 
regarding NAGPRA, and other matters of domestic and international 
repatriation, and protection of Sacred Places.
    The Association began its review of potential amendments to NAGPRA 
most recently starting in 2018 with its Repatriation Working Group and 
other partners. The RWG went line-by-line developing potential 
amendments that are based in our experience implementing the Act and 
its regulations. Hand in hand with Tribal and museum practitioners, we 
have also developed strong positions on revisions to the NAGPRA 
regulations. Through this work, the Association has developed 
recommendations about whether the problems with NAGPRA have come from 
the Act itself, or from the current regulations.
    It is clear to us that the biggest problem with NAGPRA compliance 
comes from the language of the current regulations. The Act continues 
to be a strong human rights statute--with the main problem that those 
in control of recommending and developing the regulations that are 
currently in force created complicated bureaucratic processes that has 
allowed institutions to get away with 30 years of refusing to 
repatriate and properly consult with Native Nations (or Tribes) and 
Native Hawaiian Organizations (NHOs).
    We are not providing full details of our recommendations--instead, 
we are providing a summarized version of these amendments that will 
hopefully lead to further discussion. Based on the lessons learned over 
31 years of NAGPRA, there are four categories of amendments that are 
needed to align the Act to Congress' intent. First, there are several 
definitions in 25 U.S.C.  3001 that require amendment, and a couple 
other definitions that should be included to improve implementation.
    Second, the Act must improve compliance and enforcement, with 
amendments within the Act and its criminal provisions. Third, the 
jurisdiction of the Act must be expanded to apply regardless of where 
stolen and looted Ancestors and cultural items are held or are 
discovered. Finally, amendments to the Act could be included to support 
repatriation of children and others that are in marked or unmarked 
graves of boarding schools and other institutions so that lineal 
descendants and Native Nations can bring their stolen Ancestors home 
for reburial.
    The following recommendations are summarized for brevity and follow 
the framework of the Act.
25 USC  3001--Definitions
    ``Cultural Items'' should be defined as understood by the 
affiliated Tribe or NHO and not by the museum or federal agency. In 
other words, the Tribe or NHO understanding of whether an item fits in 
a particular category should be presumed to be correct as the Tribe or 
NHO is the primary expert of their own cultural heritage.
    ``Funerary object'' is defined by two separate definitions--one for 
associated funerary objects and one for unassociated funerary objects. 
This has caused confusion for institutions with split collections whose 
funerary objects have been split away from their Ancestors. The 
definition of unassociated funerary object has also been unworkable for 
other significant reasons. ``Unassociated funerary objects'' must be 
connected to a specific Ancestor or burial site, which has prevented 
these items from being repatriated. This information is often unknown 
because of the poor record-keeping of many institutions. However, 
Tribes understand the types of items that were included in their 
burials. Unfortunately, graves have been disturbed for the very purpose 
of removing funerary objects to be sold and exhibited as ``art'' 
because these items have been more valuable and easier to traffic than 
human remains. Tribes and institutions should not have to connect 
funerary objects to specific Ancestors or known burial sites. All 
funerary objects should be treated the same, with the Tribe or NHO as 
the primary expert to categorize the cultural item correctly.
    ``Indian Tribe.'' Native American Ancestors and cultural items have 
been looted and unconscionably taken over the course of colonial 
history before there was a class of Tribes referred to as ``federally 
recognized Tribes.'' The Act's definition of ``Indian Tribe'' has been 
used inconsistently in the past by regulators, sometimes including 
state recognized Tribes that are eligible for special programs, and 
sometimes restricted to federally recognized Tribes alone. The 
definition should clearly state that this remedial human rights Act 
applies to federal and state recognized Tribes, as state Tribes are 
``eligible for the special programs and services provided by the United 
States to Indians because of their status as Indians.'' The Act already 
applies to lineal descendants and Native Hawaiian organizations, which 
are not federally recognized Tribes. It is illogical that NAGPRA would 
not be available as a remedy to state recognized Tribes and Indigenous 
Peoples who can prove descendancy or ownership.
    ``Native American'' should be amended to include ``or was'': 
``means of, or relating to, a tribe, people, or culture that is or was 
indigenous to the United States.'' This amendment is required because 
of the faulty reasoning of the Ninth Circuit Court of Appeals in the 
Kennewick Man case.
    ``Consultation'' is not defined in the Act though it is a main 
tenet of this work. Given the absolute remedial, restorative purpose of 
NAGPRA, consultation must be defined differently from other contexts. 
Consultation, for NAGPRA purposes, must be defined to require obtaining 
the consent of Tribes or NHOs and that, unless consultation shows 
otherwise, that the Ancestor and cultural items are viewed with the 
presumption of Tribal or NHO ownership. \1\ Consultation must be more 
than providing notice, considering that the Act's language recognizes 
that the institution must prove it has a ``right of possession.'' (In 
other words, the Act's language presumes repatriation should occur and 
the only exception is when the institution can prove it has a ``right 
of possession.'')
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    \1\ Please note that the term ``ownership'' does not truly define 
how Tribes and NHOs care for Ancestors, their burial belongings and 
sacred and cultural patrimony. In fact, the term ``ownership'' can be 
offensive to our values. This term is being used in our comments to 
best translate a western legal concept. Instead of ownership, we would 
prefer terms such as ``rightful caretaker.''
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    ``Possession or Control'' is used throughout the Act but not 
defined, though the phrase is significant in the declaration of legal 
responsibilities under the Act. \2\ Whether an institution has 
possession or control, it is obligated to comply with NAGPRA. 
``Possession or control'' in NAGPRA does not equate to a legal 
interest, unless the institution can prove that it has a ``right of 
possession'' as clearly defined in the Act. This is one of the most 
important concepts that drives the Act's successful implementation!
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    \2\ For example: ``Each Federal agency and each museum which has 
possession or control over holdings or collections of Native American 
human remains and associated funerary objects shall compile an 
inventory.'', 25 U.S.C. 3003(a) (emphasis added).
---------------------------------------------------------------------------
    The regulations, as well as guidance provided by different federal 
agency leadership over time, has defined ``control'' and ``possession'' 
separately, and includes a type of legal interest. To illustrate this, 
the meaning of ``right of possession'' used in the Act must be 
understood. The Act provides a one-and-only exception to repatriation. 
If an institution can prove a ``right of possession'' then repatriation 
shall not occur:

        ``Right of possession'' means possession obtained with the 
        voluntary consent of an individual or group that had authority 
        of alienation. .. The original acquisition of Native American 
        human remains and associated funerary objects which were 
        excavated, exhumed, or otherwise obtained with full knowledge 
        and consent of the next of kin or the official governing body 
        of the appropriate culturally affiliated Indian tribe or Native 
        Hawaiian organization is deemed to give right of possession to 
        those remains.

    25 U.S.C.  3001(13). Thus, the Act establishes that agencies and 
museums shall not have any rightful legal interest to Ancestors and 
cultural items unless they can prove an authoritative transfer from a 
Tribe or NHO to the institution at the time the item was taken.
    Thus, the Act's use of the phrase ``possession or control'' does 
not and cannot create a legal interest that the Act itself forbids and 
that the agency or museum has not proven. Institutions justify using 
Ancestors and cultural items anyway they wish, permitting them to 
exhibit, research (even with federal monies) and loan Ancestors and 
cultural items to even international institutions without first 
fulfilling their NAGPRA responsibilities for repatriation and 
disposition--though they do not have a ``right of possession.'' 
Agencies and museums do not have current legal rights in cultural items 
without this determination--to the contrary, they have legal duties to 
comply with NAGPRA and restore rightful ownership to Tribes and NHOs.
    We recommend then that ``possession or control'' be defined 
together as a single term or phrase--as they appear in the Act--as a 
type of naked possession or control and treated like a bailment, albeit 
one unintended by the rightful owners (Tribes and NHOs). In that 
context, legal rights never transfer from institution to Tribe, but are 
instead acknowledged and restored, and the entity with temporary and 
naked ``possession or control'' has a duty to safeguard and restore 
items to the proper owners. The NAGPRA process, through consultation, 
affiliation, notice, and repatriation would then acknowledge (instead 
of transferring a legal interest that the agency or museum does not 
have) the Tribe(s) or NHO(s) proper and legal ownership.
25 USC  3002. Ownership: An opportunity to rectify the return of 
        children from Boarding Schools
    The Act allows for the removal of Ancestors and their burial 
belongings from federal or Tribal lands. This process may also be used 
to disinter and repatriate children from marked and unmarked burials 
from past or present Boarding School and other institutional 
properties. Federal agencies, such as the U.S. Army, have denied that 
NAGPRA applies to excavate and return children from marked and unmarked 
boarding school cemeteries.
    Rather than following NAGPRA, the U.S. Army chose to use their own 
internal procedures, applicable to soldiers' graves. Those regulations, 
adopted without regard to the fiduciary obligations central to NAGPRA 
and without Tribal consultation, only allow for a lineal descendant to 
disinter their Ancestor (and not an affiliated Native Nation or NHO), 
and further burdens the process by requiring affidavits and other 
information not required by NAGPRA. The Army asserts that the Thorpe v. 
Borough of Jim Thorpe case from the Third Circuit Court of Appeals 
prevents the application of NAGPRA to disinter a known grave or 
cemetery of a Native American (at least in that circuit). The Army's 
argument is misplaced. The judge in the that case declined to apply the 
repatriation provisions of NAGPRA, after determining that the city was 
not a museum--and that the federal nexus was too attenuated to invoke 
the NAGPRA repatriation remedy. The court did not review the graves 
protection provisions, section 3002. As an agency of the United States, 
the Army explicitly bears the federal NAGPRA responsibility. The Army 
must act with respect to the graves protection provisions intended to 
address children's marked and unmarked graves located on lands that 
housed U.S. funded boarding schools. Those graves protections 
provisions, rather than the repatriation provisions construed in 
Thorpe, apply to remedy hundreds of years of wrongful takings of Native 
American children--and to give them a proper burial.
    Moreover, to support the excavation and return of children from 
boarding schools and other institutions, the application of NAGPRA 
should apply beyond federal and Tribal lands. There are many 
environmental statutes that apply nationally regardless of ownership of 
land, such as the Endangered Species Act, the Bald and Golden Eagle 
Protection Act, the Clean Water Act and the Clean Air Act. The only way 
to prevent a checkerboarded regulatory scheme and allow for graves 
protection and repatriation in line with Congress stated priorities in 
NAGPRA and other laws, is to require the application of NAGPRA to all 
lands and hands that hold Native burials and cultural heritage.
25 USC  3003. Inventory for Human Remains and Associated Funerary 
        Objects
    Subsection(b)(2) of this provision states that inventories ``shall 
not be construed to be an authorization for, the initiation of new 
scientific studies of such remains and associated funerary objects or 
other means of acquiring or preserving additional scientific 
information from such remains and objects.'' As expressed above, an 
institution must prove it has a ``right of possession.'' Yet, this 
permissive omission of outright banning research has given many 
institutions enough legal room to continue to perform destructive 
research on Ancestors and cultural items in which they have no ``right 
of possession.'' How can an institution perform research on collections 
that it does not own, and where the ``right of possession'' has not 
been determined? The Act should be revised to clearly ban new research 
unless ``right of possession'' is established by a burden of proof that 
is higher than a preponderance of the evidence, or unless, pursuant to 
3005(b), items are indispensable for completion of a specific 
scientific study of major benefit to the United States.
    If a Tribe and an institution mutually wish to perform more 
comprehensive investigations about Ancestors or cultural items, NAGPRA 
does not prevent that effort, see 25 U.S.C.  3009, but it most 
certainly does not require it and should be banned unless an 
institution has the ``right of possession'' of the Ancestor.
25 USC  3004. Summary for Unassociated Funerary Objects, Sacred 
        Objects and Cultural Patrimony
    As written, the Act allows the institution to determine whether the 
objects in its collections are ``cultural items'' pursuant to the Act. 
As previously stated, institutions often do not have the expertise to 
determine this, without consultation with the potentially affiliated 
Tribe or NHO. However, the language of the Act places the determination 
of whether an object is a ``cultural item'' solely in the hands of the 
institution.
    Summaries should require an institution to provide a catalogue or 
summary of its Native American collection and allow the Tribe or NHO to 
determine what items fit which categories, and then proceed with 
repatriation. After all, a Tribe or NHO has the primary expertise over 
their own cultural heritage.
25 USC  3005. Repatriation
    This provision of the Act, particularly subsection (a)(4), has 
caused a majority of problems and has fed into the large numbers of 
``culturally unidentifiable'' inventories. First, this subsection has 
been used by institutions to demand that Tribes and NHOs prove by a 
preponderance of the evidence that Ancestors and cultural items are 
affiliated. However, this section only applies where there is no 
information to affiliate. Any successful institution or Tribal 
practitioner will tell you that you only need geographic evidence to 
establish affiliation under the law.
    Institutions have used (a)(4) even where there is enough 
information to affiliate in order to delay repatriation and burden the 
Tribe to gather more information--including demands for sacred 
knowledge that is not required to show affiliation--and even to get the 
Tribe to perform more research. This provision has been financially, as 
well as emotionally and spiritually, costly for Tribes and NHOs.
    The provision should be clarified to limit inclusion of Ancestors 
and cultural items on the CUI list only where there is no information 
available, including geographical, kinship, biological, archaeological, 
anthropological, linguistic, folkloric, oral traditional, historical, 
or other relevant information or expert opinion, or no Tribe or NHO 
that seeks to affiliate and repatriate.
25 USC  3007. Penalty
    Subsection (a) should be amended to replace ``may'' with ``shall'' 
in order to improve outcomes that incentivize compliance with the Act. 
``Any museum that fails to comply with the requirements of this chapter 
may shall be assessed a civil penalty. . .'' Moreover, any penalty 
assessed should go back into the civil penalty program to fund this 
investigative work and increase efficient and effective compliance with 
the Act.
    Subsection (b)(1) must also be revised to remove the requirement 
that penalties be assessed according to the ``the archaeological, 
historical, or commercial value of the item involved.'' This has been 
viewed as offensive by many Native Nations and ignores the cultural and 
spiritual value and the harm suffered by the Native Nation from the 
refusal of the institution to comply with the law.
25 USC  3008. Grants
    The language of the Act gives the Secretary authorization to 
provide grants to Tribes and NHOs for ``repatriation,'' and grants to 
museums for completing inventories. The language should more generally 
allow grants to Tribes, NHOs and museums for all efforts under sections 
3003, 3004 and 3005 of the Act. This will support Tribes and museums to 
collaborate for funding to support these efforts--instead of needlessly 
creating two different buckets of funding and relegates Tribes to seek 
funding for only the act of repatriation.
18 USC  1170 Illegal trafficking in Native American human remains and 
        cultural items
    The current version of the Safeguarding Tribal Objects of Patrimony 
Act before the Senate and House amends the illegal trafficking 
provision of NAGPRA by increasing penalties for violations of NAGPRA. 
However, this amendment will not offer the deterrence necessary to stop 
illegal trafficking. It could, however, provide stronger deterrence 
against trafficking and improper export if the intent requirement was 
amended.
    Currently, 18 USC  1170 requires an individual to ``know'' that 
the act is illegal: ``Whomever knowingly sells. . .''. This intent 
requirement is difficult to prove, and therefore a higher criminal 
penalty will not prove a deterrence effect for the trafficking of 
cultural items. Revising the trafficking provision to include a general 
level of intent, such as merely an intent to sell (instead of the 
knowledge that the selling is illegal), as well as no requirement of 
intent (strict liability), would easily strengthen Congress' efforts to 
end trafficking. These lower or no intent crimes could provide 
misdemeanor or 1-2 year penalties, depending on scope of the crime, and 
would have a higher deterrence effect on trafficking than merely 
increasing the penalty amount.
    Thank you for this opportunity to provide comments.
                                 ______
                                 
       Prepared Statement of the Society for American Archaeology
    The Society for American Archaeology (SAA) appreciates this 
opportunity to provide the following comments on the current state of 
the implementation of NAGPRA. The SAA has long been involved in the 
issue of repatriation of Native American ancestors and cultural items 
to lineal descendants and culturally affiliated Indian Tribes and 
Native Hawaiian organizations. The SAA was one of the leading 
organizations at the forefront of the drafting and passage of the 
statute in 1990, and has remained deeply involved in its application 
and enforcement ever since.
    The SAA is an international organization that, since its founding 
in 1934, has been dedicated to research about and interpretation and 
protection of the archaeological heritage of the Americas. With nearly 
7,000 members, the SAA represents professional and avocational 
archaeologists, archaeology students in colleges and universities, and 
archaeologists working at tribal agencies, museums, government 
agencies, and the private sector. The SAA has members throughout the 
United States, as well as in many nations around the world.
    In general, while substantial progress has been made under NAGPRA, 
implementation of the law has taken longer than was anticipated at the 
time of NAGPRA's passage and is proceeding too slowly for many. There 
is room for improvement in the statute, regulations, and programmatic 
activities. The repatriation process created by the existing 
regulations is too complex, takes too much time, and is severely 
underfunded. Too often, the Department of Interior (DOI) has not 
followed the statute and its own regulations in formulating and 
carrying out policy. At times, the voice of the Review Committee (RC) 
has gone unheard. The operations of the National NAGPRA program are 
often opaque and appear erratic. Museums and federal agencies face 
hurdles such as limited budgets and staffing shortages that create 
backlogs in addressing claims and holding consultations. Too few 
resources have been dedicated to the tribes and Native Hawaiian 
organizations and the appropriate reburial places are often unavailable 
due to current federal land management policy, making it difficult to 
proceed with the actual repatriation of human remains and cultural 
items.
    An update to the NAGPRA regulations is long overdue. Given that the 
DOI intends to publish proposed changes to the NAGPRA regulations in 
the near future, the SAA believes that the most productive approach 
today is to provide the SCIA with answers to those questions asked by 
the senators during the hearing upon which the SAA can bring some of 
its experience to bear, including our view of what needs to change in 
terms of the statute, regulations, and programmatic activities.
Hearing questions and SAA answers
    Question. Sen. Cortez-Masto: The BLM and other agencies require 
lengthy NAGPRA consultations, is the DOI undertaking any effort to 
reduce the length of the process?
    Answer. Consultation is a complicated process that often requires 
substantial time. Arbitrary timelines for consultation can prevent the 
relationship-building and establishment of trust that is necessary for 
the meaningful consideration of tribal information and perspectives, 
thereby limiting the potential for successful NAGPRA outcomes. To 
facilitate effective consultation, SAA recommends that additional funds 
be offered for NAGPRA consultation grants, that consultation grants be 
awarded more often than once a year, and that federal agencies devote 
more resources to their NAGPRA consultations. There are other areas 
that could help reduce the time to complete the NAGPRA process: hard 
deadlines for the NNP to process inventories and NICs; databases that 
provide tribal, museum, and agency NAGPRA contacts; a substantial 
increase in the funding for the repatriation efforts of tribes, 
museums, and federal agencies; and increased penalties for 
noncompliance.

    Question. Sen. Cortez-Masto: what funding commitment is needed to 
meet goal of law?
    Answer. While such a number is difficult to estimate, it is clear 
that the current level of support-for the NNP, for compliance within 
other federal agencies, and for grants to tribes and museums to carry 
out repatriation projects-is wholly inadequate. From our calculations, 
an allocation of $2.5 billion over the next 10 years is needed for 
substantial progress in repatriation of human remains and funerary 
objects. This amount is estimated based on information from the NNP 
(the current rate of completion for the publication of notices for of 
human remains and associated funerary objects of 21 percent and the $50 
million awarded to date for NAGPRA grants) multiplied by a factor of 10 
(the vast majority of NAGPRA work is funded through museums, agencies, 
and tribes rather than through NAGPRA grants). Federal agencies should 
have a specific line item for NAGPRA in their budget to disclose how 
much they intend to spend to uphold their NAGPRA responsibilities.

    Question. Sen. Cantwell: what changes are needed in the law and 
regulations to ensure a sound process?
    Answer. SAA recommended statutory changes to NAGPRA:

  Definition of Native American--change to ``of, or relating 
        to, a tribe, people, or culture that is or was indigenous to 
        the United States"

  Enforcement functions (both criminal and civil) delegated to 
        DOJ

  Require federal agencies to provide appropriate (as 
        determined through tribal consultation) lands for reburial on 
        federal lands

  Protection of sensitive information recorded during NAGPRA 
        consultation process (exclusion from FOIA)

  Revise the penalties to include audits of all federal funds 
        received by the museum/organization found to be out of 
        compliance

  Add repatriation to the list of duties that can be assumed by 
        THPO programs, with a concomitant increase in funding to assist 
        with staffing for that work

    SAA recommended Regulatory changes to NAGPRA:

  Codify the duties of the National NAGPRA Program

        --SAA recommended departmental changes to facilitate 
        implementation of NAGPRA:

  Programmatic activities:

        --Refocus the efforts of the National NAGPRA Program (NNP) on 
        its core functions: notices, grants, databases, training, 
        technical assistance, and enforcement

        --Require the National NAGPRA Program to maintain databases 
        that will facilitate NAGPRA compliance, such as lists of 
        tribal, museum, and agency NAGPRA officials

        --Create deadlines for the NNP to submit notices to the Federal 
        Register once they are received by the NNP

        --Resume NAGPRA training by NNP staff rather than outsourcing 
        it

        --Ensure that grants are awarded in an equitable manner without 
        preferential treatment based on unwritten criteria. Have at 
        least two opportunities per fiscal year for consultation grant 
        applications to be submitted and reviewed

  Staffing:

        --Create a unit within the office of the Secretary of the 
        Interior to oversee all cultural and historic preservation 
        programs, laws, and compliance effort for tribes, including 
        NAGPRA; if this does not occur, then undertake to adequately 
        staff the NNP, and create a Senior Advisor position within the 
        NNP that is linked to the NPS' Tribal Relations Office

        --The SAA supports the NNP being housed in the administrative 
        unit within the Department of Interior that is the most 
        efficacious for the Tribal nations and accomplishing the goals 
        of NAGPRA. It encourages the DOI to give weight to the 
        recommendations supplied by the tribes on this specific subject 
        in the fall of 2021 when considering the proper placement of 
        the program

    Question. Sen. Schatz--how does NAGPRA apply to boarding schools?
    Answer. The SAA commends the DOI for undertaking the Federal Indian 
Boarding School Initiative and trusts that the DOI will consider this 
question as part of its review. DOI's consultation with Tribal nations 
on this subject will be critical to answering this question, as will 
additional research into land and facility ownership and funding.

    Question. Sen. Schatz--DOI has hired NAGPRA civil investigator; is 
there a backlog in allegations of non-compliance?
    Answer. The SAA believes that there is a backlog of allegations of 
non-compliance, but the NNP has not provided current information on 
civil enforcement investigation since its 2017 annual report. At the 
end of FY17, a total of 115 entities were named in letters alleging a 
failure to comply. A total of 449 allegations had been investigated for 
53 entities, with a total of 32 allegations against 20 entities 
substantiated. The status of the investigations into the other 62 
entities, and the number of allegations involved, has not been reported 
by the NNP. Between FY18 and FY20, at least two letters alleging non-
compliance were received by the NNP; but the number of entities and 
allegations in those letters has not been made publicly available. The 
addition of the new civil investigator should help with any backlog.

    Question. Sen. Murkowski--only 21 percent of institutions have 
fully resolved all claims on human remains/items under NAGPRA; is it 
accurate to say that 79 percent are in non-compliance?
    Answer. According to the NNP, approximately 21 percent of the 
institutions with human remains have published notices for the 
repatriation or disposition of all of the human remains under their 
stewardship. The SAA applauds their efforts. The other 79 percent are 
museums and agencies that have not published notices for all human 
remains under their stewardship, but they may meet the basic technical 
requirements for being in compliance. The SAA understands that very few 
situations in NAGPRA are clear-cut; without further information on the 
civil enforcement efforts, we do not know how many museums or agencies 
are non-compliant. It is also unknown how many entities have never 
submitted an inventory or summary. NAGPRA is a process and it takes 
time, resources, and institutional will, support, and prioritization to 
complete notices for all human remains.
                                 ______
                                 
Prepared Statement of Hon. J. Michael Chavarria, Governor, Santa Clara 
                                 Pueblo
I. Pueblo Calls on Committee to Pursue NAGPRA Amendments
    The Pueblo appreciates the opportunity to present information to 
the Committee on the important topic of strengthening the Native 
American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C.   
3001-3013, 18 U.S.C.  1170. Protection of our tribal cultural heritage 
items and our sacred places is a priority to the Pueblo, and we have 
dedicated significant resources to and gained expertise in these areas 
as a result.
    We have seen firsthand that NAGPRA is an important tool for 
bringing our ancestors and cultural items home. NAGPRA serves as an 
example of the federal government taking concrete actions to honor its 
trust obligations to Tribal Nations in the context of cultural 
preservation and revitalization.
    But we have also seen that NAGPRA has many shortcomings and would 
benefit from statutory amendments to strengthen and clarify its scope 
and legal effects. Therefore, we hope that this oversight hearing is 
the first of many conversations between the Committee, Tribal Nations, 
and other experts regarding how to strengthen NAGPRA to improve its 
functioning. We believe these conversations can lead to concrete 
changes to NAGPRA that will significantly benefit Indian Country.
II. Examples of Needed NAGPRA Amendments
    There are many areas in which NAGPRA's statutory language could be 
strengthened to more fully and robustly protect tribal cultural 
heritage items. Below we have provided some examples of areas for 
improvement. However, we encourage the Committee to engage in further 
tribal consultation and information gathering to gain a more 
comprehensive understanding of potential beneficial statutory changes.
Cultural Affiliation
    NAGPRA utilizes the phrase ``cultural affiliation'' in important 
and potentially gatekeeping ways. ``Cultural affiliation'' plays a 
significant role in determining who will receive an ancestor or 
cultural item upon repatriation from a museum or federal agency, 25 
U.S.C.  3005(a), or upon disposition after removal from federal or 
tribal lands, 25 U.S.C.  3002(a)(2). ``Cultural affiliation'' also 
shapes how items are identified and how Tribal Nations receive notice 
of their inclusion in museums' and federal agencies' inventories, 25 
U.S.C.  3003, and summaries, 25 U.S.C.  3004. Importantly, cultural 
items that museums and federal agencies deem to have a cultural 
affiliation are subject to NAGPRA's repatriation process. See 25 U.S.C. 
 3005.
    One of NAGPRA's most serious weaknesses is the way a ``cultural 
affiliation'' finding or lack thereof can derail a repatriation. 
Museums and federal agencies use NAGPRA's language as currently drafted 
to conclude that a cultural item lacks a cultural affiliation such that 
the duty to repatriate is not triggered. See 25 U.S.C.  3005(a). When 
coupled with NAGPRA's lack of sufficient oversight regarding such 
cultural affiliation determinations, this is a major loophole in 
NAGPRA's implementation.
    One potential solution is strengthening NAPGRA to clarify that a 
museum or federal agency's legal obligation to repatriate, 25 U.S.C.  
3005(a), any tribal cultural heritage item is triggered if that item 
qualifies as a ``cultural item'' under NAGPRA, 25 U.S.C.  3001(3), 
especially in the context of Native American ancestors and their 
associated funerary objects. Determining which tribal recipient is most 
closely culturally affiliated for purposes of receiving that cultural 
item should be a separate question.
    Further, decisionmaking authority regarding NAGPRA's application to 
a particular item and its repatriation should be placed in the hands of 
Tribal Nations, the Review Committee, and the Department of the 
Interior rather than in the hands of museums and federal agencies. 
Determinations of whether a tribal cultural heritage item is a ``Native 
American'' `` cultural item'' covered by NAGPRA and its ``cultural 
affiliation'' should be made based on all available evidence, including 
Tribal Nations' expertise. Where museums and federal agencies are 
permitted any decisionmaking authority, their decisions should be 
subject to review before the Review Committee, the Department of the 
Interior, and the courts, and Tribal Nations must be able to initiate 
such review.
Provenance Requirements
    Although NAGPRA prohibits trafficking of ancestors and cultural 
items, 18 U.S.C.  1170, these prohibitions only apply to ancestors for 
whom the offender lacks a right of possession, 18 U.S.C.  l l 70(a), 
and to cultural items obtained in violation of NAGPRA, 18 U.S.C.  l 
170(b). In practice, this usually means prosecution is not possible 
unless the federal government, in conjunction with the Tribal Nation, 
can demonstrate the cultural item was removed from tribal or federal 
land after NAGPRA's 1990 enactment date. See 25 U.S.C.  3002(a), (c). 
Thus, without establishing these provenance requirements, an item that 
has enough cultural significance to qualify as a ``cultural item'' 
under NAGPRA, 25 U.S.C.  3001(3), still cannot be protected from 
trafficking. \1\ NAGPRA's trafficking prohibitions should apply to all 
cultural items regardless of the date they were removed or the land 
from which they were obtained.
---------------------------------------------------------------------------
    \1\ The Archaeological Resources Protection Act (ARPA) has s imilar 
provenance issues. See 16 U.S.C.  470ee(b)(I); see also 16 U.S.C.  
470ee(a), (e). One half-measure to fixing the ARPA provenance issues is 
adding ``tribal law'' to amend its provisions stating that ARPA 
prohibits trafficking of''archaeological resources,'' see 16 U.S.C.  
470bb(I), that were removed before ARPA was enacted but in violation of 
federal or state law in place at the t ime, 16 U.S.C.  4 70ee(b)(2), ( 
c ).
---------------------------------------------------------------------------
    Separately, NAGPRA should be amended to make clear that museums' 
and federal agencies' inventory, summary, and repatriation obligations, 
25 U.S.C.   3003-05, are not limited by any provenance requirements, 
as some have wrongly read provenance requirements into those 
provisions.
Clearer Prohibitions Against Harming Cultural Items Not Removed
    NAGPRA prohibits removal of cultural items from federal and tribal 
lands without proper permitting, 25 U.S.C.  3002(c), and cultural 
items' trafficking, 18 U.S.C.  1170. But NAGPRA's terms should be 
strengthened to clarify that harming a cultural item, even if that item 
is not removed from federal or tribal lands, is a criminal violation of 
NAGPRA.
More Accountability for Government Agencies Managing Federal Lands
    As the Pueblo recently saw, the La Cieneguilla Petroglyphs located 
on Bureau of Land Management lands were vandalized, and such events are 
not uncommon. There must be more accountability for government agencies 
that currently manage the lands on which cultural items are located, 
and the agencies must be required to ensure proper protection of such 
lands when they are made open to the public.
    Similarly, when cultural items are located on federal lands, 
government agencies must be required to advise and coordinate closely 
with Tribal Nations that have a direct connection to the lands. NAGPRA 
currently requires a person making a discovery on federal lands to 
notify the relevant federal agency, 25 U.S.C.  3002(d)(l), and further 
requires tribal consultation ahead of excavation, 25 U.S.C.  
3002(c)(2), (4). NAGPRA should be amended to require notification to 
and consultation with a Tribal Nation immediately upon discovery.
International Trafficking
    The current federal laws often used to protect tribal cultural 
heritage items from trafficking, including NAGPRA and the 
Archaeological Resources Protection Act (ARPA), 16 U.S.C.   470aa-
470mm, currently leave many tribal cultural heritage items unprotected 
from export and trafficking abroad. The Pueblos in particular have seen 
many of our sacred tribal cultural heritage items set for auction 
overseas and out of our reach. The Safeguard Tribal Objects of 
Patrimony (STOP) Act of 2021, H.R. 2930 and S. 1471, aims to stop the 
export and facilitate the international repatriation of tribal cultural 
heritage items already protected under these federal laws. The STOP Act 
passed the House with bipartisan support in December 2021 and is now 
before the Senate awaiting passage. A very similar version of the STOP 
Act passed the Senate in 2020 via unanimous consent. We call on the 
Committee to secure passage of the bill as soon as possible.
Enforcement
    Stricter enforcement of NAGPRA is necessary to ensure compliance 
with NAGPRA. Similarly, stricter penalties are necessary, and sacred 
places containing NAGPRA cultural items should be treated as World 
Heritage Sites for purposes of penalty setting. The STOP Act would 
increase NAGPRA trafficking penalties. NAGPRA's provisions authorizing 
the Secretary of the Interior to assess civil penalties against museums 
and federal agencies for violations of their NAGPRA obligations should 
also be strengthened. See 25 U.S.C.  3007. Further, NAGPRA must 
provide Tribal Nations with remedies whereby we can ensure its 
enforcement ourselves because protecting our own tribal cultural 
heritage items is ultimately our responsibility.
    Thank you for the Committee's attention, and we urge you to 
continue this important work. We hope to continue dialogue with you 
regarding ways to strengthen NAGPRA.
                                 ______
                                 
  Prepared Statement of the Salt River Pima-Maricopa Indian Community
    The Salt River Pima-Maricopa Indian Community (SRPMIC) is located 
in Central Arizona, on the southern boundary of the Phoenix 
metropolitan area. SRPMIC is comprised of the O'Odham and Piipaash 
cultures, which are two different and distinct cultures with unique 
histories and languages. SRPMIC's aboriginal territory consists of 3.8 
million acres of South Central Arizona, as adjudicated in 1970 by the 
U.S. Indian Claims Commission through Docket 228. The combined 
adjudicated land claims area of SRPMIC, the Gila River Indian 
Community, the Ak-Chin Indian Community, and the Tohono O'Odham Nation, 
otherwise referred to as the Four Southern Tribes of Arizona, are used 
as the basis for consultation under NAGPRA. However, recent 
anthropological studies now recognize the aboriginal use area of the 
O'Odham, Piipaash, and their ancestors existing eastward into present 
day New Mexico, northward into present day Utah, westward to the 
Pacific Coast, and southward of the Sierra Occidental into Mexico 
(where there are still O'Odham villages that are a part of the Tohono 
O'Odham Nation.)
Introduction
    This testimony is drafted in response to the Senate Indian Affairs 
Committee Oversight Hearing entitled ``The Long Journey Home: Advancing 
the Native American Graves Protection and Repatriation Act's Promise 
After 30 Years of Practice.'' SRPMIC is heartened that the Committee is 
examining both compliance and implementation of the Native American 
Graves Protection and Repatriation Act of 1990 (NAGPRA), as well as 
considering legislative solutions to address some of the statutory 
issues that have arisen over the last several decades.
    The people of the SRPMIC and the Four Southern Tribes of Arizona 
have deep and binding ties to one another and believe that the health 
and continued existence of our communities relies on these bonds. We 
hold the belief that people are more than physical beings, and people 
do not cease to exist (spiritually) or to have ties to this earth at 
the time of death, but go on to a new world where they continue in a 
new form of existence only if their physical remains from this world 
are allowed to continue the natural progression undisturbed until their 
return to the earth, when the entire body breaks down and is 
indistinguishable from the dust. We also believe that all objects 
placed intentionally with a burial must be kept with the body and 
become subject to the same disposition of the associated remains. 
SRPMIC acknowledges the great importance of advancement to an equitable 
resolution for the many Ancestors currently awaiting disposition and 
looks forward to the time when all of our people are treated with the 
respect and dignity that all people deserve.
    The main principles of NAGPRA are to provide for the protection of 
undisturbed burials, and to provide a mechanism for the repatriation of 
human remains, funerary objects, sacred objects, and objects of 
cultural patrimony to Native American groups for culturally appropriate 
disposition. NAGPRA strives to soothe and correct the injustices 
inflicted on Native peoples that occurred due to the disturbance and 
destruction of sacred burial places of our ancestors and the wrongful 
collection of objects that are vital to continuing our traditional way 
of life.
    Implementation of NAGPRA has been a long process, and since 1991, 
SRPMIC has been successful in repatriating thousands of remains and 
cultural items. Over the years we have learned much about how NAGPRA 
works, as well as some of the ways in which it has fallen short. This 
testimony highlights several suggested fixes to NAGPRA based on the 
Community's firsthand experience.
Comments and Recommendations
Redefine ``right of possession'' and ``possession or control'' to 
        reflect authorized stewardship rather than ownership
    SRPMIC asserts that Human remains are not objects and cannot be 
owned. We strongly believe that the final and best outcome for any 
remains or objects is for them to be returned to the Tribe to be 
reburied at an appropriate, unpublicized location that will be 
protected in perpetuity.
    Currently, NAGPRA allows institutions to completely avoid 
repatriating NAGPRA remains and items if it can prove a ``right of 
possession.'' This ``right of possession'' is defined in the Act:

        ``Right of possession'' means possession obtained with the 
        voluntary consent of an individual or group that had authority 
        of alienation. .. The original acquisition of Native American 
        human remains and associated funerary objects which were 
        excavated, exhumed, or otherwise obtained with full knowledge 
        and consent of the next of kin or the official governing body 
        of the appropriate culturally affiliated Indian tribe or Native 
        Hawaiian organization is deemed to give right of possession to 
        those remains.

    The non-Native concept of possession is highly offensive to SRPMIC 
and many other Tribes across the nation. SRPMIC has witnessed and 
experienced this exception used by agencies and museums to allow them 
to erroneously assert some level of proper title, thus permitting them 
to exhibit, research and loan ancestral human remains and cultural 
items without fulfilling their NAGPRA responsibilities for 
repatriation. In some cases, we have even seen institutions use this 
exception to drag out the NAGPRA inventory process and arbitrarily 
delay repatriation.
    For the purposes of NAGPRA, we believe that human remains and other 
NAGPRA objects that have been transferred in the past should be 
considered to have been temporarily transferred to an authorized 
steward for safeguarding until such time as the objects or remains may 
be restored to the Tribe. While it is not an ideal situation, we 
acknowledge that in certain circumstances this may be the best option 
for a Tribe to protect the Ancestors, and all other NAGPRA items.
    We believe that the updated concept of possession articulated above 
would respect the intent of this exception--which is to allow 
authorized tribal governments to temporarily cede control or custody of 
objects for their protection--without implying that remains and related 
objects can ever be owned.
    For the reasons above, we also recommend eliminating the term 
``possession or control'' in the act (``Each Federal agency and each 
museum which has possession or control over holdings or collections of 
Native American human remains and associated funerary objects shall 
compile an inventory.'', 25 U.S.C. 3003(a)). Instead, simply possession 
is sufficient, as there are no circumstances under which any 
institution may exert full control over any remains or other NAGPRA 
objects.
Simplify ``cultural affiliation'' determination process
    ``Cultural affiliation'' is a fundamental component of NAGPRA and 
the repatriation process set forth in the Act. Following enactment, 
agencies and institutions were responsible for compiling inventories 
and summaries of NAGPRA remains and items, and to the extent possible, 
identifying the cultural affiliation of each item. Based on this 
initial inventory, Tribes are able to submit repatriation requests for 
items and remains that are affiliated with the Tribe.
    Unfortunately, due to the size of collections, lack of funding in 
the Act for institutions to dedicate staff time to the inventory 
process, and in some cases malicious intent to subvert the purposes of 
NAGPRA, more than 90 percent of ancestral human remains and cultural 
items were not positively affiliated with a present-day Tribe, and 
instead were placed on the ``culturally unidentifiable'' list. The 
motives for subverting NAGPRA are clear:

  Museums--especially research institutions--prefer to maintain 
        ancestral human remains and cultural items as unidentifiable 
        based on their own internal policies that allow various forms 
        of research, including research that may lead to the 
        destruction of the remains and items, without consent of Tribes 
        or NHOs.

  Delaying and denying cultural affiliation determinations has 
        allowed museums and institutions to maintain the collections of 
        ancestors and all cultural items to which they hold no ``right 
        of possession,'' and continue to do so for their academic, 
        economic and other interests at the expense of human and civil 
        rights.

    Following this first ``phase'' of cultural affiliation findings, 
Tribes, including SRPMIC, have worked with agencies and institutions to 
positively identify the cultural affiliation for thousands of items 
through a second phase of NAGPRA grants. Tribal consultation, along 
with geographical information and information held by the museum or 
agency, is all that is required to make a determination of cultural 
affiliation under the law. This determination is not an academic or 
scientific research project; it is a prescribed regulatory process to 
remedy the human and civil rights abuses against Tribes and NHOs 
through restitution. The connection between the Tribe(s) or NHO(s) need 
only be reasonably shown, does not require evaluation of all possible 
forms of evidence, and is not defeated by gaps in the historical 
record. Thus, the regulations should make it more clear that this is a 
collaborative process that centers around Tribal consultation, and not 
merely a weighing of evidence.
    SRPMIC has first-hand experience with the flaws of the current 
regulations. In 2011, SRPMIC and the Gila River Indian Community 
jointly submitted a NAGPRA repatriation request to the Peabody Harvard 
Museum which included our cultural affiliation documentation to assist 
in the identification of relevant remains and NAGPRA items on their 
``culturally unidentifiable'' list. Our cultural affiliation 
documentation was rejected by Peabody for various and unsubstantiated 
rationales. However, expert archeologists throughout the southwestern 
United States agree the NAGPRA items in question came from a known 
Hohokam archeological site in Maricopa County in Arizona and are 
affiliated to the Four Southern Tribes of Arizona.
    The Peabody Harvard Museum then proceeded to apply for and receive 
a NAGPRA grant, portions of which were used for the ``review of 
evidence towards a reassessment of cultural affiliation of human 
remains and funerary objects from southern Arizona.'' Although the 
grant concluded in 2016, we have yet to be contacted by the museum with 
the results of their analysis. Despite the preponderance of evidence, 
which has been used to successfully repatriate thousands of NAGPRA 
items to date, the Museum has still not repatriated these clearly 
affiliated items.
    This is just one example under which many museums have requested 
NAGPRA dollars intended for the purpose of consultation, finding 
affiliation, and moving forward with repatriation--only to use the 
funding to place those Ancestors in a ``culturally unidentifiable'' 
inventory, indefinitely evading the appropriate remedy.
    Were this second phase of affiliation grants directed to Tribal and 
NHO efforts to resolve culturally unidentifiable inventory (CUI) lists, 
NAGPRA funding would have been utilized more effectively and avoided 
the biases and self-interest of museums and institutions protecting 
their collections. Moving forward, we recommend that NAGPRA grants be 
awarded to institutions that, at a minimum, submit applications jointly 
and in collaboration with Tribes and NHOs.
    The Act lays out a simple process for determining cultural 
affiliation--the current regulations turn that process into an 
interminable research project that museums and agencies have used to 
burden Tribes, delay and prevent repatriation, and even continue or, 
worse, initiate destructive scientific research. The draft regulations 
proposed recently by the National Park Service are better, but still 
problematic. We ask that you (1) simplify the process of finding 
cultural affiliation as outlined by the Act that supports repatriation 
for those Ancestors and cultural items that have not yet been 
inventoried or placed in summaries as described above; (2) repatriate 
the Ancestors and their burial belonging within the CUI inventories 
without requiring more museum or agency decisionmaking, delay and 
expense; and (3) place the burden of proof on institutions to prove 
that items the tribe has claimed affiliation with are in fact 
unaffiliated.
Redefine and eliminate term ``culturally unidentifiable'' to 
        ``culturally unidentified''
    As demonstrated above, the culturally unidentifiable definition has 
been used repeated by agencies and institutions to delay or obstruct 
compliance with the Act. Additionally, many institutions have gone on 
to write-off their culturally unidentifiable inventory, even when 
requesting NAGPRA grant funding. Museums--even well-funded and well-
intentioned ones--have admitted that they will not be proactive with 
their culturally unidentifiable inventories. We believe that the term 
``culturally unidentifiable'' should be replaced with ``culturally 
unidentified.'' This preserves the responsibility for institutions and 
agencies to work with Tribes to eventually repatriate all Ancestors and 
related objects.
Utilize Secretarial Authority to meaningfully crack down on 
        institutions not in compliance
    The regulations must fully acknowledge and empower the authority of 
the Review Committee and the Secretary to oversee, monitor and achieve 
compliance with this important human rights legislation. One of the 
primary complaints against the implementing regulations is that there 
are ``no teeth.'' We propose avenues pursuant to the language of the 
Act and other federal law that will underscore the Secretary's role to 
enforce Review Committee findings when the Review Committee has found 
an alleged violation of NAGPRA.
    The Act gives the Secretary of the Interior authority to:

        a.Promulgate regulations that bind museums as well as federal 
        agencies in their responsibilities under NAGPRA (25 U.S.C. 
        3011);

        b.Carry out the special government to government relationship 
        with Indian Tribes and Native Hawaiian organizations for the 
        benefit of Tribes and NHOs (Id.  3010);

        c.Provide grants to Tribes, NHOs and museums to support 
        repatriation and complete inventories (Id.  3008);

        d.Enforce civil penalties against museums and use its subpoena 
        powers in those efforts (Id.  3007);

        e.Establish a Review Committee that will monitor and review the 
        implementation of the inventory and identification process and 
        repatriation activities, specifically nine separate expressed 
        activities. Some of those activities are:

  ensuring a fair, objective consideration and assessment of 
        all available relevant information and evidence in inventory, 
        summary and repatriation processes;

  upon the request of any affected party, reviewing and making 
        findings related to the identity or cultural affiliation of 
        cultural items, or the return of such items;

  facilitating the resolution of any disputes among Indian 
        tribes, Native Hawaiian organizations, or lineal descendants 
        and Federal agencies or museums relating to the return of such 
        items including convening the parties to the dispute if deemed 
        desirable;

  compiling an inventory of culturally unidentifiable human 
        remains that are in the possession or control of each Federal 
        agency and museum and recommending specific actions for 
        developing a process for disposition of such remains;

  consulting with Indian tribes and Native Hawaiian 
        organizations and museums on matters within the scope of the 
        work of the committee affecting such Tribes or organizations;

  consulting with the Secretary in the development of 
        regulations to carry out this chapter;

  performing such other related functions as the Secretary may 
        assign to the committee; and

  making recommendations, if appropriate, regarding future care 
        of cultural items which are to be repatriated. (Id.  3006)

    In the Federal Advisory Committee Act (FACA), Congress declared 
that ``the function of advisory committees should be advisory only, and 
that all matters under their consideration should be determined, in 
accordance with law, by the official, agency, or officer involved.'' 5a 
U.S.C.  2(b)(6). Thus, if the Review Committee finds, through its 
oversight, monitoring, assessment, dispute resolution or other 
activities that there is an alleged violation of NAGPRA, then the 
Committee must advise the Secretary to take action. Where the alleged 
violation is against a museum, the Secretary can proceed through the 
civil penalty process. Where alleged violations are made against 
federal agencies, then the Secretary must have both duty and ability to 
seek compliance from the other agency. If the alleged violation is 
within the Department of the Interior, then an appropriate 
administrative solution must be found.
    The Secretary must be empowered to seek resolution of interagency 
disputes. NAGPRA expressly delegates NAGPRA authority to the Secretary 
of the Interior, but outside agencies have been reluctant to comply, 
and have even asserted the authority to make their own rules contrary 
to NAGPRA. To further advance the benefits of reforming the NAGPRA 
process, we recommend the creation of an Executive Order that clarifies 
the fiduciary duty applicable to all agencies of the United States, as 
specified in statutory delegation of authority to the Interior 
Secretary to implement the Act, and the concomitant obligation of all 
federal agencies to comply with the Secretary's implementing 
regulations.
Ban the use and reference of remains & objects during NAGPRA proceeding 
        process
    One of the primary motives for agencies and institutions to drag 
out the NAGPRA process is to allow for the continued display, use, and 
research of human remains and other NAGPRA items. While many of the 
solutions listed above would resolve the primary ways in which agencies 
and institutions have avoided or delayed compliance with NAGPRA, it is 
possible that other loopholes may be found and exploited by bad actors.
    We recommend the Act be amended to explicitly ban the use of 
display of, study of, and reference to Native American remains and 
NAGPRA items. This will immediately end the persistent human rights 
violations current ongoing. Furthermore, it will incentivize agencies 
and institutions to finally fully comply with NAGPRA in order to empty 
inventory space that is now unable to be used.
Require institutions to provide records of past stewardship of NAGPRA 
        items to affiliated tribes
    NAGPRA specifically deals with items currently in inventory, but as 
we work towards a post-NAGPRA future, we recommend requiring 
institutions to provide records of transfer for NAGPRA items no longer 
in their inventories. For example, an item transferred to private 
storage or collection in 1985 would be effectively lost under NAGPRA, 
but records of those transfer could be used for Tribes to go after the 
private collection.
Require agency staff training on NAGPRA compliance
    While NPS is responsible for implementation of NAGPRA and has the 
largest number of NAGPRA items on its lands, other federal agencies and 
departments, most notably the Bureau of Land Management and the U.S. 
Army Corps of Engineers, regularly interact with the law and are 
required to comply with NAGPRA. However, currently, agency staff are 
unable to attend NAGPRA training sessions held by NPS. Additionally, 
federal personnel are not eligible for scholarships to these NAGPRA 
related events due to their government status. Federal Agencies are 
underrepresented at these trainings, conferences and workshops.
    We recommend that the Congress review and allocate funding for 
NAGPRA related projects in federal agency budgets to include NAGPRA 
training and dedicated NAGPRA Federal personnel to conduct compliance 
work. Additionally, we recommendation that DOI Office of the Secretary 
and Federal Agency review current travel restrictions on NAGPRA related 
trainings, conference and workshops.
NAGPRA compliance is woefully underfunded
    Funding for NAGPRA compliance is a significant contributor to many 
of the delays and challenges in identifying cultural affiliation. 
Additionally, federal agencies are not allowed to apply for NAGPRA 
grants therefore making it impossible to adequately perform their 
compliance under NAGPRA.
    We recommend that DOI, GAO, or another appropriate entity undertake 
a study, in consultation with Tribes, on the funding required to 
satisfy the goals of NAGPRA and submit this report to Congress for 
consideration and funding.
                                 ______
                                 
    Prepared Statement of Hon. Billy Friend, Chief, Wyandotte Nation
I. Nation Calls on Committee to Pursue NAGPRA Amendments
    The Nation appreciates the opportunity to present information to 
the Committee on the important topic of strengthening the Native 
American Graves Protection and Repatriation Act (NAGPRA). 25 U.S.C.   
3001-3013. 18U.S.C.  1170. We have seen first hand that NAGPRA is an 
important tool for bringing our ancestors and cultural items home. 
NAGPRA serves as an example of the federal government taking concrete 
actions to honor its trust obligations to Tribal Nations in the context 
of cultural preservation and revitalization.
    However, we have also seen that NAGPRA has many shortcomings and 
could benefit from statutory amendments to strengthen and clarify its 
scope and legal effects. Even for NAGPRA provisions that Tribal Nations 
believe are black and white, museums, federal agencies, and others 
introduce ambiguity that muddies NAGPRA's implementation. Therefore, we 
hope that this orversight hearing is the first of manv conversations 
between the Committee, Tribal Nations, and other experts regarding how 
to strengthen NAGPRA to improve its functioning. We believe these 
conversations can lead to concrete changes to NAGPRA that will 
significantly benefit Indian Country.
II. Examples of Needed NAGPRA Amendments
    There are many areas in which NAGPRA's statutory language could be 
strengthened to more fully and robustly protect tribal cultural 
heritage items. Below we have provided some examples of areas for 
improvement. However, we encourage the Committee to engage in further 
tribal consultation and information gathering to gain a more 
comprehensive understanding of potential beneficial statutory changes.
Cultural Affiliation
    NAGPRA utilizes the phrase ''cultural affiliation'' in important 
and potentially gatekeeping ways. ``Cultural affiliation'' plays a 
significant role in determining who will receive an ancestor or 
cultural item upon repatriation from a museum or federal agency, 25 
U.S.C.  3005(a). or upon disposition after removal from federal or 
tribal lands. 25 U.S.C.  3002(a)(2). ``Cultural affiliation'' also 
shapes how items are identified and how Tribal Nations receive notice 
of their inclusion in museums' and federal agencies' inventories. 25 
U.S.C.  3003. and summaries, 25 U.S.C.  3004. Importantly. cultural 
items that museums and federal agencies deem to have a cultural 
affiliation are subject to NAGPRA's repatriation process. See 25 U.S.C. 
 3005.
    One of NAGPRA's most serious weaknesses is the way a ``cultural 
affiliation'' finding or lack thereof can derail a repatriation. 
Museums and federal agencies use NAGPRA's language as currently drafted 
to conclude that a cultural item lacks a cultural affiliation such that 
the duty to repatriate is not triggered. See 25 U.S.C.  3005(a). When 
coupled with NAGPRA's lack of sufficient oversight regarding such 
cultural affiliation determinations, this is a major loophole in 
NAGPRA's implementation.
    One potential solution is strengthening NAPGRA to clarify that a 
museum's or federal agency's legal obligation to repatriate, 25 U.S.C. 
 3005(a), any tribal cultural heritage item is triggered if that item 
qualifies as a ``cultural item'' under NAGPRA, 25 U.S.C.  3001(3). 
especially in the context of Native American ancestors and their 
associated funerary objects. Determining which tribal recipient is most 
closely culturally affiliated for purposes of receiving that cultural 
item should be a separate question.
Provenance Requirements
    Although NAGPRA prohibits trafficking of ancestors and cultural 
items. 18 U.S.C.  I 170, these prohibitions only apply to ancestors 
for whom the offender lacks a right of possession, 18 U.S.C.  1170(a), 
and to cultural items obtained in violation of NAGPRA, 18 U.S.C.  
1170(b). In practice. this usually means prosecution is not possible 
unless the federal government, in conjunction with the Tribal Nation, 
can demonstrate the cultural item was removed from tribal or federal 
land after NAGPRA's 1990 enactment date. See 25 U.S.C.  3002(a), (c). 
Thus, without establishing these provenance requirements, an item that 
has enough cultural significance to qualify as a ``cultural item'' 
under NAGPRA, 25 U.S.C.  3001(3), still cannot be protected from 
trafficking. \1\ NAGPRA's trafficking prohibitions should apply to all 
cultural items regardless of the date they were removed or the land 
from which they were obtained.
---------------------------------------------------------------------------
    \1\ The Archaeological Resources Protection Act (ARPA) has similar 
provenance issues. See l6 U.S.C. S 470ee(bxl); see also 16 U.S.C.  
470ee(a), (e). One half-measure to fixing the ARPA provenance issues is 
adding ``tribal law'' to amend its provisions stating that ARPA 
prohibits trafficking of''archaeological resources,'' see 16 U.S.C.  
470bb(l), that were removed before ARPA was enacted but in violation of 
federal or state law in place at the time, l6 U.S.C.  47oee(b)(2). 
(c). Further. decisionmaking authority regarding NAGPRA's application 
to a particular item and its repatriation should be placed in the hands 
of Tribal Nations, the Review Committee, and the Department of the 
Interior rather than in the hands of museums and federal agencies. 
Determinations of whether a tribal cultural heritage item is a ``Native 
American'' ``cultural item'' covered by NAGPRA and its ``cultural 
affiliation'' should be made based on all available evidence, including 
Tribal Nations' expertise. Where museums and federal agencies are 
permitted any decisionmaking authority, their decisions should be 
subject to review before the Review Committee, the Department of the 
Interior, and the courts, and Tribal Nations must be able to initiate 
such review. Separately. NAGPRA should be amended to make clear that 
museums' and federal agencies' inventory. summary. and repatriation 
obligations,25 U.S.C.   3003-05, are not limited by any provenance 
requirements. as some have wrongly read provenance requirements into 
those provisions.
---------------------------------------------------------------------------
International Trafficking
    The current federal laws often used to protect tribal cultural 
heritage items from trafficking, including NAGPRA and the 
Archaeological Resources Protection Act (ARPA), l6 U.S.C.   
470aa470mm, currently leave many tribal cultural heritage items 
unprotected from export and trafficking abroad. The Safeguard Tribal 
Objects of Patrimony (STOP) Act of 2021, H.R. 2930 and S. 1471, aims to 
stop the export and facilitate the international repatriation of tribal 
cultural heritage items already protected under these federal laws. The 
STOP Act passed the House with bipartisan support in December 2021 and 
is now before the Senate awaiting passage. A very similar version of 
the STOP Act passed the Senate in 2020 via unanimous consent. We call 
on the Committee to secure passage of the bill as soon as possible.
Sensitive Information
    Successful implementation of NAGPRA requires Tribal Nations to 
share extremely sensitive information with federal agencies, where 
federal agencies are subject to disclosure requirements under the 
Freedom of Information Act (FOIA), 5 U.S.C.  552. NAGPRA must be 
amended to exempt from FOIA disclosure information submitted to federal 
agencies by Tribal Nations as part of any NAGPRA process. The STOP Act 
contains a similar FOIA exemption for information Tribal Nations submit 
pursuant to the Act.
Enforcement
    Stricter enforcement of NAGPRA and stricter penalties are necessary 
to ensure compliance with NAGPRA. The STOP Act would increase NAGPRA 
trafficking penalties. NAGPRA's provisions authorizing the Secretary of 
the Interior to assess civil penalties against museums and federal 
agencies for violations of their NAGPRA obligations should also be 
strengthened. See 25 U.S.C.  3007. Further. NAGPRA must provide Tribal 
Nations with remedies whereby we can ensure its enforcement ourselves--
because protecting our own tribal cultural heritage items is ultimately 
our responsibility.
    Thank you for the Committee's attention, and we urge you to 
continue this important work. We hope to continue dialogue with you 
regarding ways to strengthen NAGPRA.
                                 ______
                                 
  Prepared Statement of Martina Dawley, Tribal Historic Preservation 
                        Officer, Hualapai Tribe
I. Tribe Calls on Committee to Pursue NAGPRA Amendments
    The Tribe appreciates the opportunity to present information to the 
Committee on the important topic of strengthening the Native American 
Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C.   3001-
3013, 18 U.S.C.  1170. We have seen firsthand that NAGPRA is an 
important tool for bringing our ancestors and cultural items home. 
NAGPRA serves as an example of the federal government taking concrete 
actions to honor its trust obligations to Tribal Nations in the context 
of cultural preservation and revitalization.
    However, we have also seen that NAGPRA has many shortcomings and 
would benefit from statutory amendments to strengthen and clarify its 
scope and legal effects. NAGPRA implementation continues to be plagued 
by deeply rooted paternalism, where museums play a gatekeeping and 
decisionmaking role in which they view themselves as the proper owners 
and caretakers of tribal cultural heritage items. Tribal Nations have 
the knowledge and expertise to make repatriation decisions, and our 
cultural heritage items rightfully belong to us under NAGPRA as well as 
tribal law. It is time NAGPRA be amended to correct the imbalance in 
which museums have acted as ultimate authorities in NAGPRA enforcement. 
Tribal Nations must be the ultimate decision makers.
    Therefore, we hope that this oversight hearing is the first of many 
conversations between the Committee, Tribal Nations, and other experts 
regarding how to strengthen NAGPRA to improve its functioning. We 
believe these conversations can lead to concrete changes to NAGPRA that 
will significantly benefit Indian Country.
II. Examples of Needed NAGPRA Amendments
    There are many areas in which NAGPRA's statutory language could be 
strengthened to more fully and robustly protect tribal cultural 
heritage items. Below we have provided some examples of areas for 
improvement. However, we encourage the Committee to engage in further 
tribal consultation and information gathering to gain a more 
comprehensive understanding of potential beneficial statutory changes.
Cultural Affiliation
    NAGPRA utilizes the phrase ``cultural affiliation'' in important 
and potentially gatekeeping ways. ``Cultural affiliation'' plays a 
significant role in determining who will receive an ancestor or 
cultural item upon repatriation from a museum or federal agency, 25 
U.S.C.  3005(a), or upon disposition after removal from federal or 
tribal lands, 25 U.S.C.  3002(a)(2). ``Cultural affiliation'' also 
shapes how items are identified and how Tribal Nations receive notice 
of their inclusion in museums' and federal agencies' inventories, 25 
U.S.C.  3003, and summaries, 25 U.S.C.  3004. Importantly, cultural 
items that museums and federal agencies deem to have a cultural 
affiliation are subject to NAGPRA's repatriation process. See 25 U.S.C. 
 3005.
    One of NAGPRA's most serious weaknesses is the way a ``cultural 
affiliation'' finding or lack thereof can derail a repatriation. 
Museums and federal agencies use NAGPRA's language as currently drafted 
to conclude that a cultural item lacks a cultural affiliation such that 
the duty to repatriate is not triggered. See 25 U.S.C.  3005(a). When 
coupled with NAGPRA's lack of sufficient oversight regarding such 
cultural affiliation determinations, this is a major loophole in 
NAGPRA's implementation.
    One potential solution is strengthening NAPGRA to clarify that a 
museum or federal agency's legal obligation to repatriate, 25 U.S.C.  
3005(a), any tribal cultural heritage item is triggered if that item 
qualifies as a ``cultural item'' under NAGPRA, 25 U.S.C.  3001(3), 
especially in the context of Native American ancestors and their 
associated funerary objects. Determining which tribal recipient is most 
closely culturally affiliated for purposes of receiving that cultural 
item should be a separate question.
    Further, decisionmaking authority regarding NAGPRA's application to 
a particular item and its repatriation should be placed in the hands of 
Tribal Nations, the Review Committee, and the Department of the 
Interior rather than in the hands of museums and federal agencies. 
Determinations of whether a tribal cultural heritage item is a ``Native 
American'' ``cultural item'' covered by NAGPRA and its ``cultural 
affiliation'' should be made based on all available evidence, including 
Tribal Nations' expertise. Where museums and federal agencies are 
permitted any decisionmaking authority, their decisions should be 
subject to review before the Review Committee, the Department of the 
Interior, and the courts, and Tribal Nations must be able to initiate 
such review.
Provenance Requirements
    Although NAGPRA prohibits trafficking of ancestors and cultural 
items, 18 U.S.C.  1170, these prohibitions only apply to ancestors for 
whom the offender lacks a right of possession, 18 U.S.C.  1170(a), and 
to cultural items obtained in violation of NAGPRA, 18 U.S.C.  1170(b). 
In practice, this usually means prosecution is not possible unless the 
federal government, in conjunction with the Tribal Nation, can 
demonstrate the cultural item was removed from tribal or federal land 
after NAGPRA's 1990 enactment date. See 25 U.S.C.  3002(a), (c). Thus, 
without establishing these provenance requirements, an item that has 
enough cultural significance to qualify as a ``cultural item'' under 
NAGPRA, 25 U.S.C.  3001(3), still cannot be protected from 
trafficking. \1\ NAGPRA's trafficking prohibitions should apply to all 
cultural items regardless of the date they were removed or the land 
from which they were obtained.
---------------------------------------------------------------------------
    \1\ The Archaeological Resources Protection Act (ARPA) has similar 
provenance issues. See 16 U.S.C.  470ee(b)(1); see also 16 U.S.C.  
470ee(a), (e). One half-measure to fixing the ARPA provenance issues is 
adding ``tribal law'' to amend its provisions stating that ARPA 
prohibits trafficking of ``archaeological resources,'' see 16 U.S.C.  
470bb(1), that were removed before ARPA was enacted but in violation of 
federal or state law in place at the time, 16 U.S.C.  470ee(b)(2), 
(c).
---------------------------------------------------------------------------
    Separately, NAGPRA should be amended to make clear that museums' 
and federal agencies' inventory, summary, and repatriation obligations, 
25 U.S.C.   3003-05, are not limited by any provenance requirements, 
as some have wrongly read provenance requirements into those 
provisions.
Delays Due to Research
    NAGPRA creates an exemption from the requirement to expeditiously 
repatriate cultural items to requesting Tribal Nations if the cultural 
items are indispensable for completion of a specific scientific study 
that benefits the United States. 25 U.S.C.  3005(b). This provision 
must be removed. Repatriation of cultural items and ancestors is of 
utmost importance, and such repatriation should not be delayed due to 
research.
Requirement to Immediately Comply with NAGPRA
    NAGPRA requires museums and federal agencies with possession or 
control over holdings or collections containing cultural items to 
consult with Tribal Nations on inventories and summaries, 25 U.S.C.   
3003(b)(1)(A), 3004(b)(1)(B), and to repatriate such cultural items 
when certain requirements are met, 25 U.S.C.  3005. Yet, many museums 
do not immediately comply with these NAGPRA requirements while they 
process newly arrived items, sometimes conducting research on such 
items, including ancestors, while the accession process takes place. 
NAGPRA must be amended to require immediate compliance. Similarly, 
NAGPRA must be amended to require immediate compliance for any item 
containing human remains--even when those remains are contained in 
other objects.
Reinterment on Federal Lands
    The Tribe seeks amendments to NAGPRA that direct federal agencies 
to take possession of ancestors and other cultural items for 
reinterment at Tribal Nations' requests. Many Tribal Nations seek 
reinterment locations that are as close as possible to the location 
from which an ancestor or cultural item was taken, and public lands are 
often the best option. However, many federal agencies refuse to accept 
ancestors and other cultural items for reinterment when they cannot be 
proven to have come from the boundaries of the particular area of 
federal lands. Instead, items that should be immediately reinterred are 
stored offsite. NAGPRA should be amended to require such reinterment.
International Trafficking
    The federal laws often used to protect tribal cultural heritage 
items from trafficking, including NAGPRA and the Archaeological 
Resources Protection Act (ARPA), 16 U.S.C.   470aa-470mm, currently 
leave many tribal cultural heritage items unprotected from export and 
trafficking abroad. The Safeguard Tribal Objects of Patrimony (STOP) 
Act of 2021, H.R. 2930 and S. 1471, aims to stop the export and 
facilitate the international repatriation of tribal cultural heritage 
items already protected under these federal laws. The STOP Act passed 
the House with bipartisan support in December 2021 and is now before 
the Senate awaiting passage. A very similar version of the STOP Act 
passed the Senate in 2020 via unanimous consent. We call on the 
Committee to secure passage of the bill as soon as possible.
Enforcement
    Stricter enforcement of NAGPRA and stricter penalties are necessary 
to ensure compliance with NAGPRA. The STOP Act would increase NAGPRA 
trafficking penalties. NAGPRA's provisions authorizing the Secretary of 
the Interior to assess civil penalties against museums and federal 
agencies for violations of their NAGPRA obligations should also be 
strengthened. See 25 U.S.C.  3007. Further, NAGPRA must provide Tribal 
Nations with remedies whereby we can ensure enforcement of NAGPRA--as 
protecting our own tribal cultural heritage items is ultimately our 
responsibility.
    Thank you for the Committee's attention, and we urge you to 
continue this important work. We hope to continue dialogue with you 
regarding ways to strengthen NAGPRA.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Brian Schatz to 
                          Carmen Hulu Lindsey
    Question 1. Are there specific aspects of NAGPRA that make it 
challenging for the Native Hawaiian community to implement?
    Answer. OHA has identified four major challenges for Native 
Hawaiians when making repatriation claims under the Native American 
Graves Protection and Repatriation Act (NAGPRA): funding, lack of 
respect for Native Hawaiian oral traditions and spiritual evidence, the 
ability of Native Hawaiian religious leaders to serve on the NAGPRA 
review committee, and the definition of a Native Hawaiian organization 
(NHO). The issues regarding Native Hawaiian religious leaders serving 
on the NAGPRA review committee and definition of NHO was previously 
cited as points of concern in my written testimony; but, elaborated 
upon further here with suggested amendment language.
(a) Funding
    Given that many Natives Hawaiians today live in the remote island 
chain of Hawai`i, funding for repatriation has historically been a 
challenge as long-distance travel is needed to recover our ancestors 
and to meaningfully consult. Even with advances in modern technology 
that has allowed consultations to occur in a virtual setting, there is 
still no replacement for face-to-face meetings. Further, it is not 
culturally preferred to simply ship our iwi kupuna (ancestral Hawaiian 
human remains) home.
    In the past, OHA supported our beneficiaries through either direct 
(i.e., airfare, lodging, ground transport, education, third-party 
researchers, reburial materials) or indirect costs (i.e., staff time, 
education workshops). In other cases and more recent instances, private 
donations and grants have been sought to facilitate repatriation 
returns. In more difficult claims, it has further been necessary to 
hire third party experts to assist in rebutting museum interpretations 
that cast doubt on where iwi kupuna came from or question ancestry 
through the use of archaic craniometric methods. Even after the iwi 
kupuna are returned home, costs can still be incurred by OHA or 
beneficiaries to pay for burial materials (i.e., muslin, lauhala 
baskets) and the construction of reburial vaults.
    In terms of indirect costs, OHA dedicates numerous staff from all 
across the organization for repatriation purposes. While repatriation 
claims are primarily handled through our Compliance Enforcement 
advocates, OHA has further utilized research, legal, and neighbor 
island community resources staff. OHA has even provided educational 
workshops on NAGPRA compliance to better assist families with making 
claims or help them understand the process when partnering with OHA on 
one. On the low end, an easy NAGPRA claim could take as much as 58 
hours of staff time, while a more difficult case could take up to 450 
hours or more of staff time.
    Notably, OHA has been the primary point of contact for 
international repatriations as many countries will not repatriate to 
private individuals or NHOs without State or Federal support. As OHA is 
specifically called out in NAGPRA for having expertise in Native 
Hawaiian affairs \1\ and the recognized State agency to represent the 
lawful interest of Native Hawaiian in the State of Hawai`i 
constitution, \2\ other countries have looked to OHA when repatriation 
claims are filed and often request to know what the repatriation 
process would be like if it were handled in the United States. 
Fortunately, U.S. Embassies have assisted OHA in these endeavors 
through letters of support that acknowledge OHA's standing as an NHO 
under NAGPRA. Thus, while NAGPRA does not apply internationally, it has 
nevertheless been a useful tool to facilitate international returns. 
Again, these repatriation costs (which are often much higher for 
international claims) have been absorbed by OHA and Native Hawaiian 
beneficiaries over the years.
---------------------------------------------------------------------------
    \1\ 25 USC  3001(11)(c)
    \2\ HAW. CONST., art. XII,  5 (1978).
---------------------------------------------------------------------------
(b) Lack of Respect for Native Hawaiian Oral Traditions and Spiritual 
        Evidence
    Still to this day, OHA experiences problems with oral histories or 
spiritual information being challenged in favor of academic or 
historical documentation. This more so seems to be a greater problem 
when claiming moepu (funerary objects) and sacred objects. 
Statistically, the return of iwi kupuna has out-numbered the return of 
sacred objects and moepu. This is in part due to the fact that the 
taking of human remains is widely indefensible in a post-colonial 
academic arena, whereas interpretive arguments can still be brought 
forth by institutions in opposition to the repatriation of cultural 
objects. OHA still encounters problems when it comes to these sacred 
objects and moepu as use of these objects have been questioned by 
museum professionals who argue for utilitarian function over ceremonial 
ones.
    For example, the families of Honaunau in partnership with OHA has a 
standing NAGPRA claim for a funerary effigy of the Hawai'i Island Chief 
Keawe with the Chicago Field Museum. Per the families of Honaunau, this 
ki'i (wooden figure) was placed above the bones of Chief Keawe for 
deification purposes and made in the likeness of Keawe for his 
descendants to remember him by. However, these oral traditions have 
constantly been questioned by museum staff at the Chicago Field Museum 
since academic sources have never documented the sacred deification 
rituals or the use of the ki'i as an effigy of Keawe. The rebuttals 
from the Chicago Field Museum have deeply hurt the Honaunau families 
that have a kuleana (responsibility) to care for their ancestral 
remains and respective moepu. Essentially, this prolonged debate is 
delaying much needed healing.
    While the Chicago Field Museum case may very well eventually be 
taken to the NAGPRA Review Committee, it is unfortunate to have to 
resort to such appeals. All native peoples and their sacred oral 
traditions should be respected in the way that museum staff respect 
these academic sources. In other repatriation claims where there is 
limited provenance information, Native Hawaiians have utilized gifted 
kaula (or seers) to provide insightful information; yet, these 
spiritual identification methods are typically dismissed by museum 
professionals out of a lack of respect and understanding.
    Notably, the first NAGPRA appeal was brought to the NAGPRA Review 
Committee by the NHO Hui Malama I Na Kupuna `o Hawai`i Nei (hereinafter 
Hui Malama) in 1993 as the Phoebe Hearst Museum at California Berkely 
agreed to only repatriate 3 out of 5 iwi kupuna labeled as being from 
Hawai`i due to a lack of historical evidence for all 5. Hui Malama 
argued within their written testimony that the identity of the human 
remains in question could be identified through ceremony. The NAGPRA 
Review Committee did in fact accept Hui Malama's written testimony and 
recommended repatriation of 1 of the iwi kupuna based on the spiritual 
evidence provided, but further required physical examination of the 
other iwi kupuna. The physical examination results did later find that 
the iwi kupuna was of Hawaiian ethnicity as was first argued through 
the provided spiritual ceremony.
    Oral traditions and spiritual knowledge thus need parity with 
academic sources and examination methods within NAGPRA. OHA believes 
that addressing this will allow for a greater number of moepu and 
sacred objects to be returned back home to Hawai`i, and limit the 
questioning of iwi kupuna that are claimed.
(c) Ability of Native Hawaiian Religious Leaders to Serve on the NAGPRA 
        Review Committee
    Within the existing statutory language of 25 U.S.C.  3006, the 
NAGPRA Review Committee is to consist of seven members, two of which 
must be traditional Indian religious leaders. This Review Committee is 
meant to monitor and review the implementation of the inventory and 
identification process and repatriation activities. While OHA does not 
believe the original intent of the language was meant to be 
exclusionary, OHA has received recent complaints that traditional 
Hawaiian religious leaders were deliberately being excluded from 
consideration as one of these traditional religious leaders. It is 
unclear to OHA how long this practice has extended into past review 
committee selection processes.
    In the early years of NAGPRA, Native Hawaiian cases were the most 
heard by the Review Committee. OHA was there to assist and observe 
Native Hawaiians taking repatriation related disputes as far as they 
needed to go to resolve disagreements with museums and Federal 
institutions. Given the level of detail presented during these 
committee reviews, having a Native Hawaiian traditional religious 
leader on the NAGPRA Review Committee may have expedited some cases and 
provided a better understanding of Native Hawaiian concerns. While the 
number of Native Hawaiian cases to the NAGPRA Review Committee has 
greatly diminished in recent times, OHA is aware of a few other claims 
that may need to proceed through such an appeal process.
(d) Definition of an NHO
    25 USC  3001 does not currently require that an NHO actually 
consist of Native Hawaiians. The current language has historically been 
contentious and previously presented as problematic in testimony to the 
Committee in 2004. \3\ In the past, a museum receiving federal funds 
and recreational clubs with a stated mission to serve Native Hawaiians 
believed they could qualify as a NHO to claim human remains and 
funerary objects. Allowing a museum to become an NHO to claim cultural 
objects they held would have presented a clear conflict of interest and 
undermined the intent of NAGPRA.
---------------------------------------------------------------------------
    \3\ See December 8, 2004, Oversight Hearing before the Committee on 
Indian Affairs, 108th Congress, to receive testimony on the application 
of the Native American Graves Protection and Repatriation Act in the 
State of Hawai`i.
---------------------------------------------------------------------------
    Additionally, the definition of an NHO is notably inconsistent 
across Federal statutes and policies. At times, institutions have 
looked to the NHO list within the Secretary's Office of Native Hawaiian 
Relations for NHOs to consult with for NAGPRA purposes. OHA notes that 
this list is a self-authenticating, self-identifying, and self-
certifying list created as a means to enable federal agencies to have 
the names and addresses of potential Hawaiian organizations who they 
could send a general notice to on a wide array of Federal matters. This 
list was not specifically created for NAGPRA related responsibilities 
and there was no review by the Office of Native Hawaiian Relations to 
determine whether the information conveyed to them was accurate or 
truthful, or whether the entities who volunteered their names and 
contact information had any cultural expertise, experience, capacity, 
interest, or demonstrated discretion with regards to the handling of or 
the involvement with Hawaiian human remains and cultural items. Yet, 
these NHOs can still be identified to consult on NAGPRA.
    Granted, an inappropriate NHO may be weeded out through determining 
cultural affiliation or lineal descent of a NAGPRA claim; however, 
NAGPRA currently allows the Federal entity or museum to assess an NHOs 
cultural affiliation. Historically, Hawaiian claims have mostly been 
through cultural affiliation as cultural affiliation is less stringent 
then proving lineal descent. Federal institutions and museums thus tend 
to be liberal in allowing NHOs to claim cultural affiliation status. As 
a result, you may have NHOs making claims inappropriately or causing 
disagreements with legitimate claimants.

    Question 2. What could be improved to make the statute more 
responsive to Native Hawaiian concerns?
(a) Funding
    Answer. While NAGPRA grants are available to OHA, OHA is cautious 
about applying as not to compete with other NHOs or families that are 
in greater need then we are. Given OHA's unique constitutional mandate 
to represent Native Hawaiians and the demonstrated work that we've done 
on NAGPRA over the last 30 years, a direct authorization of 
appropriations to OHA within 25 USC  3012, or a specific type of grant 
that is only eligible to OHA within 25 USC  3008, would further help 
our cause and allow for an even more expeditious return of our 
ancestors. No specific statutory amendments are provided here at this 
time, but we welcome further discussion on this topic.
    Further, NAGPRA grants could be made available for international 
repatriation claims that are supported by the U.S. Department of State. 
25 USC  3008 could be amended to read:
    ``(a) Indian Tribes and Native Hawaiian organizations
    The Secretary is authorized to make grants to Indian tribes and 
Native Hawaiian organizations for the purpose of assisting such tribes 
and organizations in the domestic repatriation of Native American 
cultural items under NAGPRA, or abroad when international claims are 
supported by the U.S. Department of State.''
(b) Lack of Respect for Native Hawaiian Oral Traditions and Spiritual 
        Evidence
    25 USC  3005(a)(4) currently indicates that cultural affiliation 
to Native American human remains and funerary objects can be 
demonstrated through evidence based upon ``geographical, kinship, 
biological, archaeological, anthropological, linguistic, folkloric, 
oral traditional, historical, or other relevant information or expert 
opinion''. Missing from this list of evidence is ``spiritual 
evidence''.
    OHA recommends the following amendments to 25 USC  3005(a)(4):

        ``(4) Where cultural affiliation of Native American human 
        remains and funerary objects has not been established in an 
        inventory prepared pursuant to Section 3003 of this title, or 
        the summary pursuant to Section 3004 of this title, or where 
        Native American human remains and funerary objects are not 
        included upon any such inventory, then, upon request and 
        pursuant to subsections (b) and (e) and, in the case of 
        unassociated funerary objects, subsection (c), such Native 
        American human remains and funerary objects shall be 
        expeditiously returned where the requesting Indian tribe or 
        Native Hawaiian organization can show cultural affiliation by a 
        preponderance of the evidence based upon geographical, kinship, 
        biological, archaeological, anthropological, linguistic, 
        folkloric, oral traditional historical, spiritual or other 
        relevant information or expert opinion.''

(c) Ability of Native Hawaiian Religious Leaders to Serve on the NAGPRA 
        Review Committee
    OHA believes that Native Hawaiian religious leaders must be 
provided with the same standing as Tribal religious leaders when it 
comes to applying for the Review Committee. As such, an amendment to 25 
U.S.C.  3006(b)(1) is needed that would broaden the eligibility to all 
types of Native American traditional religious leaders instead of just 
Indian religious leaders.
    We recommend the following amendment to 25 U.S.C.  3006(b)(1):

        ``(b) Membership

          (1)  The Committee established under subsection (a) shall be 
        composed of 7 members,

            (A)  3 of whom shall be appointed by the Secretary from 
        nominations submitted by Indian tribes, Native Hawaiian 
        organizations, and traditional Native American religious 
        leaders with at least 2 such persons being traditional Indian 
        religious leaders.''

(d) Definition of an NHO
    As detailed in OHA's written testimony, the definition of an NHO 
should be updated to increase clarity and maintain consistency across 
federal laws and policies affecting Native Hawaiians. Most importantly, 
an NHO should be required to consist of Native Hawaiians in substantive 
policy-making decisions and have some level of demonstrated expertise 
in Hawaiian burial or cultural matters within the scope of NAGPRA.
    With these concerns in mind, we recommend the following definition 
for NHO within 25 USC  3001(11):

          ``(11)  `Native Hawaiian organization' means any organization 
        which--

            (A)  serves the interests of Native Hawaiians;
            (B)  has Native Hawaiians in substantive and policymaking 
        positions within the organization; and
            (C)  has expertise in Native Hawaiian affairs and 
        demonstrated discretion with regard to handling Hawaiian burial 
        or cultural matters within the scope of NAGPRA. For the 
        purposes of NAGPRA, the term `Native Hawaiian organization' 
        shall include, but is not be limited to, the Office of Hawaiian 
        Affairs.''

Closing Remarks
    Mahalo for this opportunity to provide written responses to the QFR 
needed to complete the SCIA's hearing record. We look forward to seeing 
much needed and long-awaited change to this important statute. Please 
let us know if any further information is needed.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Brian Schatz to 
                          Dr. Anna Maria Ortiz
    Question 1. According to your hearing testimony, consultation is 
central to carrying out the federal government's responsibility to 
protect Tribal cultural heritage but consultation practices need to be 
improved. Would federal agencies benefit from a centralized 
consultation resource center that provides technical assistance and 
training to all agencies on best practices, particularly for 
infrastructure development activities?
    Answer. We continue to believe that improved consultation between 
federal agencies and tribes is important. Although we have not 
specifically evaluated whether federal agencies would benefit from a 
centralized consultation resource center, our 2019 report on tribal 
consultation recommended that the Federal Permitting Improvement 
Steering Council's (FPISC) Office of the Executive Director work 
collaboratively with FPISC members to develop a plan to establish a 
central information system to identify and notify tribes about matters 
related to infrastructure projects. \1\ We stated that the plan should 
(1) establish well-defined goals for the system, (2) specify FPISC 
members' roles and responsibilities for establishing and maintaining 
the system given existing statutory authorities, and (3) identify the 
resources necessary for developing and maintaining the system. We also 
recommended that, as a central information system is being established, 
the office should work collaboratively with FPISC members to consider 
how they will communicate with and involve tribes to help ensure the 
accuracy of tribal data in the system. \2\
---------------------------------------------------------------------------
    \1\ GAO, Tribal Consultation: Additional Federal Actions Needed for 
Infrastructure Projects, GAO-19-22 (Washington, D.C.: Mar. 20, 2019).
    \2\ The Federal Permitting Improvement Steering Council (FPISC), 
which includes agencies that consult with tribes on infrastructure 
projects, recommended the development of a central federal information 
system of tribal areas of interest and points of contact for 
consultation in its fiscal year 2018 best practices. As of November 
2018, the FPISC members were: the Advisory Council on Historic 
Preservation, Council on Environmental Quality, Department of 
Agriculture, Department of the Army, Department of Commerce, Department 
of Defense, Department of Energy, Department of Homeland Security, 
Department of Housing and Urban Development, Department of the 
Interior, Department of Transportation, Environmental Protection 
Agency, Federal Energy Regulatory Commission, General Services 
Administration, Nuclear Regulatory Commission, and Office of Management 
and Budget. The FPISC was created by statute to make the process for 
federal approval for certain infrastructure projects more efficient. 
Pub. L. No. 114-94, div. D, tit. XLI, 129 Stat. 1312, 1741-1762 (2015). 
The Executive Director is the Chair of the FPISC, who works within the 
FPISC Office of the Executive Director.
---------------------------------------------------------------------------
    In response to these recommendations, in February 2022, the FPISC 
Office of the Executive Director told us that it was taking actions to 
improve coordination between the federal government and federally 
recognized tribes on infrastructure projects, including finalizing an 
implementation plan by the Department of Housing and Urban Development 
and the Advisory Council on Historic Preservation to expand the Tribal 
Directory Assistance Tool. According to the office, enhancements to the 
tool will provide FPISC members with a single, public database for 
identifying and notifying tribes on matters related to infrastructure 
projects and would improve the efficiency of federal agencies. The 
office further stated that FPISC members will be engaged to ensure that 
the enhancements meet overall FPISC needs and responsibilities, and 
help ensure that information in the tool is consistently conveyed from 
all levels of the federal government.

    Question 2. NAGPRA allows for the excavation of ancestral remains 
pursuant to an Archaeological Resources Protection Act permit in 
certain cases. Is the permitting process across agencies sufficiently 
uniform to ensure consistency in the granting of such permits?
    Answer. GAO has not analyzed the Archeological Resources Protection 
Act (ARPA) permitting process across federal agencies to determine 
whether it is sufficiently uniform to ensure consistency in the 
granting of such permits.

    Question 3. How has inadequate consultation with Tribes and Native 
Hawaiian organizations impacted NAGPRA implementation?
    Answer. As stated in our February 2022 testimony, one of the 
continuing challenges with implementing NAGPRA is the repatriation of 
Native American cultural items, such as human remains, still in 
collections. Of particular note are the more than 116,000 Native 
American human remains that are still in collections, 95 percent of 
which have not been determined to be affiliated with any present-day 
tribe or Native Hawaiian organization, according to the National NAGPRA 
Program's fiscal year 2020 report.
    Stakeholders have suggested that enhanced consultation would help 
with the repatriation of Native American cultural items. For example, 
the Association on American Indian Affairs states in its comments on 
the draft proposed revisions to the NAGPRA regulations that the goal of 
all consultation and collaboration must be to support a determination 
that leads to repatriation, especially considering that cultural items 
(as they are defined) were removed without a right of possession. In 
addition, the Association on American Indian Affairs and the National 
Association of Tribal Historic Preservation Officers have called for 
measures to ensure meaningful consultation in their comments on the 
draft proposed revisions to the NAGPRA regulations, rather than merely 
a procedural requirement that must be satisfied.
    Our past work as also shown that enhanced consultation and 
communication can help with the repatriation of Native American 
cultural items. In 2018, we reported on actions federal agencies have 
taken in response to Native American tribes' requests for assistance in 
repatriating cultural items from overseas, including conducting 
listening sessions and consultations. \3\ One example we highlighted in 
that report--the repatriation of the Acoma Shield--depended heavily on 
the close relationships forged between the Pueblo of Acoma and federal 
agencies. \4\ We have also reported on the role of consultation in 
other contexts. For example, in another GAO report, we recommended that 
agencies, including Interior, establish or update their policies to 
better communicate their consideration of tribal input during the 
consultation process with tribes. \5\

    \3\ GAO, Native American Cultural Property: Additional Agency 
Actions Needed to Assist Tribes with Repatriating Items from Overseas 
Auctions, GAO-18-537 (Washington, D.C.: Aug. 6, 2018).
    \4\ In 2016, the Pueblo of Acoma sought assistance from Interior, 
Justice, and State to repatriate a cultural item known as the Acoma 
Shield, a painted shield made for ceremonial use that the tribe said 
was stolen in the 1970s.The shield was returned to the tribe in 
November 2020.
    \5\ GAO-19-22.
---------------------------------------------------------------------------
    Question 4. Has GAO investigated or received a request to 
investigate any aspect of the Indian boarding school issue?
    The legacy of Indian boarding schools has been identified by mental 
health professionals as a source of intergenerational trauma that 
reverberates throughout Native communities to this day. GAO has not 
investigated or received a specific request to investigate any aspect 
of the Indian boarding school issue. However, we have had conversations 
with stakeholders about topics for potential investigation stemming 
from issues related to Native American boarding schools, including 
student health care concerns and oversight, as well as the effects of 
federal Indian boarding school policies.

    Question 5. Are there additional aspects of NAGPRA that new GAO 
research could address?
    There are several potential areas for future GAO audit work 
regarding NAGPRA. Examples include the following:

   A status update on federal agencies' implementation of 
        NAGPRA since 2010, including a review of the status of federal 
        agency collections of Native American cultural items housed in 
        non-federal institutions such as universities.

   An examination of challenges faced by Native Hawaiian 
        organizations and Alaska Natives regarding the repatriation of 
        cultural items under NAGPRA.

   An examination of implementation of any revisions to NAGPRA 
        regulations if finalized.

   An examination of Interior's oversight of museum compliance 
        with NAGPRA, including identifying new entities that may be 
        subject to NAGPRA because they received federal financial 
        assistance provided in response to COVID-19.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Ben Ray Lujan to 
                          Dr. Anna Maria Ortiz
    Question 1. GAO's 2021 report on Native American cultural resources 
found that federal agencies are not required to track which incidents 
of theft or damage involve Native American cultural resources. How has 
this oversight impeded NAGPRA investigations and enforcement?
    Answer. In 2021, we reported that federal agencies are not required 
to track which incidents of theft or damage involve Native American 
cultural items. \1\ According to agency officials from several agencies 
we interviewed at the time, their law enforcement databases were 
designed to assist and track investigations broadly, not to readily 
identify incidents involving the theft or damage of Native American 
cultural items since there is no requirement to do so. \2\ Agencies 
primarily use their law enforcement databases to record and manage 
investigations but may also use them to analyze crime data, assist with 
staffing decisions, and inform resource allocation and budgeting 
decisions.
---------------------------------------------------------------------------
    \1\ GAO, Native American Cultural Resources: Improved Information 
Could Enhance Agencies' Efforts to Analyze and Respond to Risks of 
Theft and Damage, GAO-21-110 (Washington, D.C.: Mar. 4, 2021).
    \2\ The agencies included in our 2021 review were the Department of 
Agriculture's U.S. Forest Service; the Department of the Interior's 
Bureau of Indian Affairs, Bureau of Land Management, U.S. Fish and 
Wildlife Service, and National Park Service; the U.S. Army Corps of 
Engineers; and the Tennessee Valley Authority.
---------------------------------------------------------------------------
    According to officials from six of the seven agencies we reviewed 
that manage or administer federal and Indian lands, resource 
constraints and limited data have also hindered their ability to detect 
and investigate instances of theft and damage to Native American 
cultural items. Specifically, they noted reductions in the number of 
law enforcement officers. For example, U. S. Fish and Wildlife Service 
officials we interviewed said that from fiscal year 2009 to fiscal year 
2018, the number of the agency's law enforcement officers decreased 
from 441 to 231. Agency officials also said that many sites are 
unknown, and when they receive information about an alleged incident, 
they do not have sufficient information on the previous conditions of 
the site to know what items may have been stolen or damaged, or when 
the incident may have taken place.
    We concluded in our report that to effectively analyze and address 
risks to Native American cultural items, agencies need information to 
support decisionmaking, such as the location and condition of 
archeological sites and numbers or trends of incidents of theft and 
damage. As a result, we recommended that each of the agencies take 
steps to identify and obtain such information to enhance their ability 
to analyze and respond to risks to Native American cultural items and 
ensure that they are prioritizing their constrained resources to 
mitigate the greatest risks.

    Question 2. Has the Bureau communicated that it is taking steps to 
implement this recommendation since then? Once implemented, how will 
this recommendation enable the Bureau to better prevent and respond to 
instances of cultural resource theft and damage on federal lands?
    Answer. In November 2021, the Department of the Interior 
communicated to us that the Bureau of Indian Affairs (BIA) agreed with 
GAO's findings related to the Archaeological Resources Protection Act 
of 1979 (ARPA) and Native American Graves Protection and Repatriation 
Act (NAGPRA). In its response, Interior stated that its Office of Trust 
Services, Division of Natural Resources, Branch of Environmental and 
Cultural Resource Management provided fiscal year 2021 funding to each 
of the 12 Bureau Regional Offices for the continuing placement of a 
Regional Archaeologist to ensure ARPA and NAGPRA compliance. Regional 
Archaeologists are tasked with developing and implementing a consistent 
methodology for targeting BIA's efforts to analyze and address risks to 
Native American cultural items. They are also tasked with sharing any 
promising practices with the Departmental Consulting Archeologist. 
While implementing GAO's recommendation will not address all of the 
underlying hindrances to protecting cultural items, identifying and 
obtaining information to enhance its ability to analyze and respond to 
risks to Native American cultural items could help to ensure it is 
prioritizing its constrained resources to mitigate the greatest risks.

    Question 3. What has changed with respect to NAGPRA implementation 
since GAO's 2010 report, and what challenges have persisted since GAO's 
last review?
    Answer. During the 30 years since the passage of NAGPRA, federal 
agencies have made some progress in addressing the act's requirements, 
including repatriating over 1.7 million associated funerary objects 
with human remains, according to the National NAGPRA Program's fiscal 
year 2020 annual report. In addition, as a result of some of our 
previous recommendations, annual data on the status of federal 
agencies' repatriation efforts are readily available to Congress and 
the public. \3\
---------------------------------------------------------------------------
    \3\ GAO, Native American Graves Protection and Repatriation Act: 
After Almost 20 Years, Key Federal Agencies Still Have Not Fully 
Complied with the Act, GAO-10-768 (Washington, D.C.: July 28, 2010).
---------------------------------------------------------------------------
    However, as we have previously reported, and as tribes and tribal 
organizations have stated, agencies continue to face challenges in 
implementing and enforcing NAGPRA. While agencies have made progress in 
repatriating remains to culturally affiliated tribes, human remains of 
more than 116,000 individuals are still in collections and have not yet 
been culturally linked to a present-day tribe or Native Hawaiian 
organization. In addition, challenges remain with implementing NAGPRA's 
consultation requirements and addressing limitations in the 
prohibitions on theft and trafficking of Native American cultural 
items. Further, the number of entities subject to NAGPRA has 
potentially grown as a result of federal financial assistance provided 
in response to the COVID-19 pandemic and we do not yet understand the 
universe of potentially affected institutions. \4\
---------------------------------------------------------------------------
    \4\ NAGPRA defines a museum as any institution or state or local 
government agency, including any institutions of higher learning, that 
receives federal funds and has possession or control over Native 
American cultural items.
---------------------------------------------------------------------------
    Question 4. Why is improving museum and federal agency consultation 
with Tribes and Native Hawaiian organizations critical to the 
implementation of NAGPRA, and what are some potential impacts of 
improved consultation?
    Answer. Enhancing agencies' consultation with tribes and Native 
Hawaiian organizations is important to implementing NAGPRA for several 
reasons. First, regular and meaningful consultation with tribal 
officials could help strengthen government-to-government relationships 
by developing relationships with and enhancing trust between tribes and 
the United States, which are critical to sensitive issues such as 
repatriation. Second, in-depth consultation with tribes and Native 
Hawaiian organizations could help address issues related to the 
repatriation of the hundreds of thousands of Native American cultural 
items held by federal agencies and museums in accordance with NAGPRA, 
would help foster collaborative rather than adversarial interactions, 
and could potentially reduce the risk of costly litigation. Third, 
regular and meaningful consultation is important for leveraging the 
tribal knowledge that is necessary to support efficient and successful 
repatriations.

    Question 5. What statutory and regulatory changes are needed to 
improve agency and museum compliance?
    Answer. GAO has not analyzed NAGPRA and its implementing 
regulations or Interior's draft proposed revised NAGPRA regulations to 
determine what changes, if any, may be necessary to improve federal 
agency and museum compliance. However, we are aware of the National 
NAGPRA Program's plans to revise NAGPRA regulations and the concerns 
raised by stakeholder groups, such as the National Association of 
Tribal Historic Preservation Officers and Association on American 
Indian Affairs. For example, these stakeholder groups have expressed 
concerns with the current statutory definition of Native American. They 
have also expressed concerns about how the process for determining 
cultural affiliation used by agencies and museums has resulted in more 
than 90 percent of human remains of ancestors being deemed culturally 
unidentifiable.

    Question 6. What are the key contextual factors Congress should 
consider as it evaluates potential changes to NAGPRA?
    Answer. The significant experience that tribes, agencies, and 
institutions have gained since enactment of NAGPRA, together with the 
increased awareness of the importance of protecting and repatriating 
cultural items to Native American cultures, warrant renewed 
consideration of aspects related to NAGPRA implementation. In 2018, GAO 
recommended that relevant federal agencies assess, in consultation with 
tribes, whether and how amending the U.S. legal framework governing the 
export, theft, and trafficking of Native American cultural items would 
facilitate their repatriation from overseas auctions and report their 
findings to Congress. \5\ Relatedly, in April 2021, the Safeguard 
Tribal Objects of Patrimony Act of 2021 was introduced in the House and 
Senate. If enacted, these bills would enhance protections for Native 
American cultural items, including explicitly prohibiting the export of 
certain items and increasing the penalties for trafficking such items.
---------------------------------------------------------------------------
    \5\ GAO-18-537.
---------------------------------------------------------------------------
    As Congress evaluates potential changes to NAGPRA, contextual 
factors to consider would include:

   Annual data from the National NAGPRA Program. In response to 
        our 2010 report, the National NAGPRA Program began collecting 
        and reporting data on federal agencies' implementation of 
        NAGPRA, including the costs associated with undertaking work 
        borne by tribes, agencies, and institutions that are affected 
        by the case-by-case nature of each repatriation. In its 2018-
        2019 report to Congress, the NAGPRA Review Committee described 
        the volume of remaining repatriation work as daunting. In 
        addition, it noted that NAGPRA compliance is more costly than 
        originally estimated and also more complex because each 
        repatriation must be addressed on a case-by-case basis.

   Tribal consultation. We appreciate the importance-and the 
        potential complexity-of consultation between agencies and 
        tribes. A 2021 presidential memorandum reaffirmed the policy of 
        federal agency consultation with tribal officials in the 
        development of federal policies that have tribal implications, 
        which strengthens the nation-to-nation relationship between the 
        United States and tribal nations. \6\ In its prior work, GAO 
        has identified agency practices that facilitate effective 
        consultation, as well as a list of leading practices that 
        agencies can use when collaborating with its stakeholders. \7\ 
        Agencies can leverage this knowledge to enhance their 
        consultation and collaboration with tribes, which may 
        facilitate implementation with NAGPRA.
---------------------------------------------------------------------------
    \6\ Presidential Memorandum, Tribal Consultation and Strengthening 
Nation-to-Nation Relationships, 86 Fed. Reg. 7491 (Jan. 29, 2021).
    \7\ GAO-19-22.

   Benefits and challenges of technological developments. 
        Technological developments in the 30 years since NAGPRA was 
        enacted have changed the ways information is obtained, stored, 
        and shared. One potential benefit of technological advancements 
        is the potential to use remote sensing technologies to 
        inventory cultural sites without disrupting them through 
        excavation. However, technological developments can also 
        introduce new challenges. For example, technological changes 
        that have increased the ease with which we can communicate with 
        one another have also created opportunities for the illicit 
        trade of Native American cultural items.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Brian Schatz to 
                        Valerie Grussing, Ph.D.
    Question 1. This Committee previously considered and reported out 
legislation to amend the definition of ``Native American'' in NAGPRA to 
mean ``of, or relating to, a tribe, people, or culture that is or was 
indigenous to the United States.'' How would adding ``or was'' help to 
ensure the intent of NAGPRA is met?
    Answer. Amendments to the definition of ``Native American,'' 
similar that that proposed in our written testimony, were previously 
considered by the Senate in the 108th, \1\ 109th, \2\ and 110th \3\ 
Congresses. This proposed amendment is intended to address the 
misinterpretation of the term by the United States Court of Appeals for 
the Ninth Circuit in Bonnichsen v. United States that, focusing on the 
word ``is'' in the definition, required that human remains and other 
cultural items ``must bear a significant relationship'' to a presently 
existing Tribe, people, or culture to be considered Native American. 
\4\ In doing so, the court mistakenly conflated the initial 
determination that human remains or cultural items are ``Native 
American,'' and thus subject to NAGPRA, with the subsequent requirement 
to identify which present-day lineal descendant, Indian Tribe, or 
Native Hawaiian organization has a right to claim them. In NAGPRA, 
Congress clearly anticipated that there would be situations in which no 
lineal descendant or affiliated Indian Tribe or Native Hawaiian 
organization could be identified and delegated to the Department of the 
Interior responsibility for creating separate mechanisms for the 
disposition of ``unclaimed'' Native American human remains and cultural 
items that were excavated or discovered on Federal or Tribal lands, \5\ 
or ``culturally unidentifiable'' Native American human remains in the 
possession or control of a Federal agency or museum. \6\ Our proposed 
amendment to the definition of ``Native American'' is meant to separate 
the Native American determination from the subsequent determinations of 
affiliation and resolve the ambiguity created by the Ninth Circuit's 
incorrect interpretation that continues to have a negative impact on 
implementation of both the civil and criminal provisions of NAGPRA.
---------------------------------------------------------------------------
    \1\ S. 2843, 108th Cong.  14 (Sept. 23, 2004).
    \2\ S. 536, 109th Cong.  108 (May 12, 2005).
    \3\ S. 2087, 110th Cong.  2 (Sept. 25, 2007).
    \4\ Bonnichsen v. United States, 367 F.3d 864, 878 (9th Cir. 2004).
    \5\ 25 U.S.C.  3002(b); 43 C.F.R.  10.7.
    \6\ 25 U.S.C.  3006(c)(5); 43 C.F.R.  10.11.

    Question 2. Is oral tradition afforded the same weight as other 
forms of evidence used to establish cultural affiliation under NAGPRA? 
Even if given the same weight under NAGPRA, is there a practical 
disparity in how it is used or treated? Are you aware of any instances 
where Tribes have chosen to forego the use of oral tradition because, 
in their experience, it is undervalued by museums and federal agencies? 
How can this be corrected?
    Answer. In determining the cultural affiliation of Native American 
human remains and funerary objects, the Congress directed museums and 
Federal agencies to consider a broad range of relevant evidence, 
including oral tradition. \7\ Regulations implementing NAGPRA have 
applied this evidentiary standard to the determination of cultural 
affiliations of all cultural items. \8\
---------------------------------------------------------------------------
    \7\ 25 U.S.C.  3005(a)(4) (``[S]uch Native American human remains 
and funerary objects shall be expeditiously returned where the 
requesting Indian tribe or Native Hawaiian organization can show 
cultural affiliation by a preponderance of the evidence based upon 
geographical, kinship, biological, archaeological, anthropological, 
linguistic, folkloric, oral traditional, historical, or other relevant 
information or expert opinion.'').
    \8\ 43 C.F.R.   10.2(e)(1), 10.14(e).
---------------------------------------------------------------------------
    A 2016 study provides insight into how oral tradition evidence has 
factored into determinations of cultural affiliation. \9\ The study 
analyzed 1,476 Notices of Inventory Completion published between 1992 
and 2013 that determined cultural affiliation for 43,799 human remains 
and 1,165,838 funerary objects. The study found that 36 percent of the 
notices considered oral tradition evidence, with Federal agencies 
considering it 51 percent of the time and museums 31 percent of time. 
No notices solely relied on oral tradition evidence nor did any use 
oral tradition to tip the scale toward a finding of cultural 
affiliation.
---------------------------------------------------------------------------
    \9\ Jason Roberts, Unwinding Non-Native Control over Native 
America's Past: A Statistical Analysis of the Decisions to Return 
Native American Human Remains and Funerary Objects under the Native 
American Graves Protection and Repatriation Act, 1992-2013, 38 U. OF 
HAW. L. REV. 337 (2016).
---------------------------------------------------------------------------
    Even when considered, oral tradition evidence is often accorded 
limited value by museums, Federal agencies, and the Courts. In 
Bonnichsen v. United States, the Ninth Circuit wrote that oral 
tradition accounts are ``just not specific enough or reliable enough or 
relevant enough. . . [b]ecause oral accounts have been inevitably 
changed in context of transmission, because the traditions include 
myths that cannot be considered as if factual histories, because the 
value of such accounts is limited by concerns of authenticity, 
reliability, and accuracy, and because the record as a whole does not 
show where historical fact ends and mythic tale begins. . . .'' \10\
---------------------------------------------------------------------------
    \10\ Bonnichsen, 367 F.3d at 881-82.
---------------------------------------------------------------------------
    This problem is not just limited to NAGPRA. Tribes note that 
Federal agencies tend to require a higher burden of proof when 
nominating historic properties to the National Register for Historic 
Places and during Section 106 reviews under the National Historic 
Preservation Act when they are supported by tribal traditional 
knowledge.
    Tribes are often reluctant to allow public scrutiny of their most 
sensitive oral tradition evidence, particularly that related to 
religious practices. In one example, after four years of litigation, 
including the United States Court of Appeals for the Tenth Circuit 
vacating the United States District Court for the District of New 
Mexico's dismissal of its lawsuit, \11\ a Tribe filed a motion to 
dismiss the case in part due to concerns for subjecting its traditional 
religious leaders to cross examination at trial over Tribal oral 
tradition. \12\
---------------------------------------------------------------------------
    \11\ Pueblo of San Ildefonso v. Ridlon, 103 F.3d 936 (10th Cir. 
1996).
    \12\ Pl.'s Mot. to Dismiss with Prejudice, Pueblo of San Ildefonso 
v. Ridlon, No. 93-cv-01467 (D. N.M. Apr. 30, 1997) (Dkt. No. 70).
---------------------------------------------------------------------------
    A suggestion for correcting this biased and patriarchal approach is 
described in our response to your question 3 below.

    Question 3. Building on your testimony, how does California's 
version of NAGPRA (CalNAGPRA) better incorporate Tribal oral tradition 
into the repatriation process, and how does it balance the tension the 
court dealt with in Bonnichsen v. U.S.?
    Answer. The California Native American Graves Protection and 
Repatriation Act (CalNAGPRA), initially enacted in 2001, was amended in 
2021 in part to address shortcomings of NAGPRA. Whereas NAGPRA does not 
define ``oral tradition,'' CalNAGPRA uses a similar term of ``tribal 
traditional knowledge'' which it defines as: ``knowledge systems 
embedded and often safeguarded in the traditional culture of California 
Indian tribes and lineal descendants, including, but not limited to, 
knowledge about ancestral territories, cultural affiliation, 
traditional cultural properties and landscapes, culturescapes, 
traditional ceremonial and funerary practices, lifeways, customs and 
traditions, climate, material culture, and subsistence. Tribal 
traditional knowledge is expert opinion.'' \13\ CalNAGPRA then goes on 
to give tribal traditional knowledge deference by defining 
``preponderance of the evidence'' as ``the party's evidence on a fact 
indicates that it is more likely than not that the fact is true. Tribal 
traditional knowledge alone may be sufficient to meet this standard. If 
there is conflicting evidence, tribal traditional knowledge shall be 
provided deference.'' \14\ CalNAGPRA provides an explicit definition of 
the term and makes explicit to Tribes, museums, agencies, and the 
courts that Tribal traditional knowledge may be used alone as well as 
being accorded deference in conflicting situations.
---------------------------------------------------------------------------
    \13\ Cal. Health & Safety Code  8012(p).
    \14\ Cal. Health & Safety Code  8012(k).

    Question 4. How does the current definition of ``museum'' 
complicate implementation of NAGPRA, particularly as it pertains to 
repatriation? Are there any other definitions in NAGPRA that present 
similar challenges?
    Answer. In NAGPRA, Congress defined ``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. Such term does not 
include the Smithsonian Institution or any other Federal agency.'' \15\ 
NATHPO fully supports the statutory language but has major concerns in 
how the Department of the Interior has interpreted the phrase 
``possession of, or control over,'' both in the current regulations and 
the draft proposed rule. Neither ``possession'' nor ``control'' are 
defined in NAGPRA, thus the common meaning of the terms should apply. 
Instead, the current regulations define both simple terms with self-
referencing and confusing legalese that requires in both instances ``a 
sufficient legal interest to lawfully treat the objects as part of its 
collection for purposes of these regulations.'' \16\ The draft proposed 
regulations double-down on this regulatory sleight of hand by 
eliminating the term ``possession'' entirely. NATHPO pointed out in its 
comments on the draft proposed regulations that this new scheme is 
inconsistent with the statute's clear language requiring museums and 
Federal agencies to provide Indian Tribes and Native Hawaiian 
organizations with summaries and inventories of cultural items in their 
``possession or control.'' While the proposed scheme would be more 
convenient for museums and Federal agencies to implement, it will 
systematically deprive Indian Tribes and Native Hawaiian organizations 
of information on holdings or collections in a museum or Federal 
agency's possession but not in their control. It is also inconsistent 
with the clear statutory language and Congress's intent and constitutes 
an abuse of discretion. We request that the Department of the Interior 
revise Subpart C of the draft proposed regulations to focus on Native 
American collections or holdings in the possession or control of 
museums and Federal agencies, as intended by Congress, define 
``possession'' as it has the term ``custody'' in the draft proposal, 
and revise the reporting requirements so that museums and Federal 
agencies must provide summaries and inventories of all cultural items 
in their possession or control, as required by NAGPRA.
---------------------------------------------------------------------------
    \15\ 25 U.S.C.  3001(8).
    \16\ 43 C.F.R.  10.2(a)(3)(i), (ii).
---------------------------------------------------------------------------
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Ben Ray Lujan to 
                        Valerie Grussing, Ph.D.
    Question 1. Why is dedicated funding for the Bureau of Indian 
Affairs for NAGPRA compliance vital to the intent and reach of the law, 
and how would it improve the Bureau's prevention of and response to 
theft and damage of NAGPRA cultural resources, such as those that 
occurred to petroglyphs in New Mexico?
    Answer. NAGPRA establishes three separate sets of responsibilities 
for federal agencies: compliance, implementation, and enforcement. 
NATHPO has different administrative and funding recommendations for 
each.
    Compliance. Each Federal agency is required to comply with the 
repatriation provisions for cultural items in its possession or 
control, \1\ and the ownership provisions for excavations and 
discoveries on lands under its control. \2\ In a 2010 report focusing 
on the repatriation provisions, the Government Accountability Office 
(GAO) documented that one of the primary challenges faced by the eight 
Federal agencies reviewed (Bureau of Indian Affairs, Bureau of 
Reclamation, Bureau of Land Management, National Park Service, Fish and 
Wildlife Service, Army Corps of Engineers, Forest Service, and 
Tennessee Valley Authority) was a lack of funding and staff only 
working on NAGPRA compliance for historical collections as a collateral 
duty. \3\ NATHPO believes that this situation has not significantly 
changed in the past twelve years and recommends that Congress consider 
dedicated funding to enable each Federal agency, including the Bureau 
of Indian Affairs, to comply with its repatriation responsibilities.
---------------------------------------------------------------------------
    \1\ 25 U.S.C.   3003-3005.
    \2\ 25 U.S.C.  3002.
    \3\ Gov't Accountability Office, Native American Graves Protection 
and Repatriation Act: After Almost 20 Years, Key Federal Agencies Still 
Have Not Fully Complied with the Act, GAO-10-768 at 16 (July 2010).
---------------------------------------------------------------------------
    The GAO has not yet conducted a similar evaluation of Federal 
agencies' compliance with NAGPRA's ownership provisions. NATHPO hears 
from Tribal Historic Preservation Officers (THPO) that in many cases 
Federal agency officials are failing to adequately consult with Indian 
Tribes following inadvertent discoveries and are failing to complete 
the plans of action required by regulation. To get a better grasp of 
Federal compliance with NAGPRA's provisions protecting Native American 
graves and cultural items, we ask the Committee to request the GAO to 
complete an evaluation of Federal agency compliance with the ownership 
provisions of NAGPRA and its implementing regulations, particularly 
focusing on consultation, completion of plans of action and 
comprehensive agreements, publication of notice of intended 
disposition, the disposition of so-called ``unclaimed'' cultural items, 
and whether establishing dedicated positions to ensure compliance with 
these provisions at each agency would be beneficial.
    Implementation. Congress assigned responsibility for implementing 
NAGPRA to the Secretary of the Interior. These duties include providing 
staff support for the Native American Graves Protection and 
Repatriation Review Committee (Review Committee); promulgating 
implementing regulations; publishing notices submitted by museums and 
Federal agencies in the Federal Register; granting inventory extensions 
to museums; awarding grants to museums, Indian Tribes, and Native 
Hawaiian organizations; and assuming responsibility for inadvertent 
discoveries at the request of another department. The Secretary has 
retained sole authority to appoint members to the Review Committee. 
Authority to promulgate regulations, award grants, and grant inventory 
extensions has been delegated to the Assistant Secretary for Fish and 
Wildlife and Parks. \4\ The National Park Service has been delegated 
responsibility for publishing notices in the Federal Register, serving 
as the designated Federal official to the Review Committee, and 
providing staff support to the Assistant Secretary for Fish and 
Wildlife and Parks regarding regulations, grants, and extensions.
---------------------------------------------------------------------------
    \4\ Dep't of Interior, Departmental Manual, 209 DM 6.8.
---------------------------------------------------------------------------
    NATHPO believes that these implementation duties would be more 
appropriately assigned to the Office of the Assistant Secretary for 
Indian Affairs. We believe that there are two primary factors 
supporting this redelegation: 1) the importance of asserting 
definitively that the primary beneficiaries of NAGPRA are the lineal 
descendants, Indian Tribes, and Native Hawaiian organizations seeking 
the return of their ancestors and cultural items; and 2) the dangers of 
maintaining the implementation program within a land managing and 
collection managing bureau which is required to also comply with the 
statutory provisions. Similar criteria were previously used to 
establish the Office of the Special Trustee for American Indians, now 
called the Bureau of Trust Funds Administration, which is currently 
overseen by the Office of the Assistant Secretary for Indian Affairs. 
\5\
---------------------------------------------------------------------------
    \5\ Bureau of Trust Funds Admin, https://www.bia.gov/btfa (accessed 
Mar. 10, 2022).
---------------------------------------------------------------------------
    Enforcement. Enforcement of NAGPRA consists of two functions. 
First, the Secretary of the Interior is authorized to assess civil 
penalties on any museum that fails to comply with the repatriation 
provisions of the law. Authority to investigate allegations of failure 
to comply and assess civil penalties has been delegated to the Office 
of the Assistant Secretary for Fish and Wildlife and Parks. \6\ Second, 
the Attorney General is authorized to file criminal charges against any 
person who knowingly buys, sells, uses for profit, or transports for 
sale or profit Native American human remains or cultural items, with 
investigative authority generally shared between the Federal Bureau of 
Investigation and various land managing agencies. NATHPO believes that 
it would be appropriate to centralize the Department of the Interior's 
investigatory functions for both civil penalties and criminal charges 
within the Bureau of Indian Affairs Office of Justice Services, with 
civil penalties being assessed by the Assistant Secretary for Indian 
Affairs and criminal charges being brought by the Department of 
Justice. While dedicated funding would be coordinated by the Bureau of 
Indian Affairs, evidence presented in our written testimony 
demonstrates the value of having a multi-agency investigatory effort 
similar to the Four Corners Interagency ARPA taskforce in the early 
1990s.
---------------------------------------------------------------------------
    \6\ Dep't of Interior, Departmental Manual, 209 DM 6.8.

    Question 2. If enforcement of NAGPRA was moved to the Bureau, what 
would be the consequences for NAGPRA's enforcement?
    Answer. The limited information provided by the National Park 
Service indicates that no investigations of allegations for failure to 
comply have been completed and no civil penalties have been assessed 
for several years, while information from 2017 indicates there exists a 
considerable backlog of uninvestigated allegations. Any activity to 
investigate current and future allegations of failure to comply and to 
hold museums accountable would be an improvement, and we believe that 
the Bureau of Indian Affairs would approach this task focusing on 
righting the wrongs done to lineal descendants, Indian Tribes, and 
Native Hawaiian organizations without having to consider the effect of 
such investigations on other programs providing assistance to the 
museum community. Regarding enforcement of the criminal provisions, the 
Bureau of Indian Affairs has the opportunity to serve a coordinating 
role with the Federal Bureau of Investigation and law enforcement from 
other land managing agencies to investigate reported violations of 18 
U.S.C.  1170 and refer those cases to the Department of Justice for 
prosecution.

    Question 3. [Will]  10.5 (c) of the proposed NAGPRA regulations 
change Tribal and Native Hawaiian Organization notification immediately 
following the discovery of Native American items or remains?
    Answer. In our response to your fifth question below, we present a 
detailed analysis of the differences in the inadvertent discovery 
process, including the current requirement for Federal officials to 
notify and consult immediately following the discovery. Representatives 
of the National Park Service have consistently justified many of the 
changes in the draft proposal as an attempt to ``simplify the existing 
regulations.'' Removing the notification and consultation requirements 
clearly shows that such simplification is being done to the detriment 
of administrative accountability in general, and to the rights of 
lineal descendants, Indian Tribes, and Native Hawaiian organizations in 
particular.

    Question 4. Under  10.5 (d) of the proposed NAGPRA regulations, 
why is there no Plan of Action required?
    Answer. In our response to your fifth question below, we present a 
detailed analysis of the differences in the inadvertent discovery 
process, including the current requirement for Federal officials to 
prepare a Plan of Action. Representatives of the National Park Service 
have consistently justified many of the changes in the draft proposal 
as an attempt to ``simplify the existing regulations.'' Removing the 
Plan of Action requirements clearly shows that such simplification is 
being done to the detriment of administrative accountability in 
general, and to the rights of lineal descendants, Indian Tribes, and 
Native Hawaiian organizations in particular.

    Question 5. What course of action is required when there is an 
unintentional discovery of cultural items, such as ground disturbances 
due to 1) a flood or other weather event, 2) ongoing maintenance such 
as cleaning a culvert, or 3) unauthorized excavation of Native American 
graves such as carried out by thieves? What action is required under 
the existing NAGPRA regulations and under the proposed NAGPRA 
regulations?
    Answer. Immediate Notification. Any person who discovers Native 
American cultural items on Federal or Tribal lands must immediately 
notify the responsible Federal or Tribal official. For discoveries made 
as part of an ongoing activity, such as your example of cleaning a 
culvert, the person making the discovery must stop the activity in the 
area of the discovery and make a reasonable effort to protect the 
cultural item. \7\ All Federal authorizations to carry out land use 
activities on Federal lands or Tribal lands, including all leases and 
permits, must include this requirement. \8\ NATHPO has requested that 
the Department of the Interior revise its draft proposed rule to 
explicitly address the common situation where ground-disturbing 
activity is unintentional, such as your example of a flood or other 
weather event, or other types of situations like looting which cannot 
be stopped solely by regulatory edits.
---------------------------------------------------------------------------
    \7\ 43 C.F.R.  10.4(b).
    \8\ 43 C.F.R.  10.4(g).
---------------------------------------------------------------------------
    Certification and Consultation. The current regulations require 
that within three working days of receiving notification of the 
discovery, the responsible Federal official must certify receipt of the 
notification, take immediate steps to further secure and protect the 
discovered cultural item, and notify any known lineal descendant and 
culturally or geographically affiliated Indian Tribe or Native Hawaiian 
organization and begin consultation. \9\ The Department of the 
Interior's draft proposed regulation would change the three working day 
deadline to five business days and eliminate entirely the requirement 
to notify known lineal descendants and culturally affiliated Indian 
Tribes or Native Hawaiian organizations as soon as the discovery is 
made. \10\ The proposed change would mean that that the Federal 
official would be allowed to take unilateral and unsupervised actions 
regarding the discovered cultural items, including stabilizing or 
covering them, \11\ evaluating the potential need for excavating them, 
\12\ and certifying that the ground-disturbing activity may proceed, 
\13\ with no input from the lineal descendants and affiliated Indian 
Tribes and Native Hawaiian organizations.
---------------------------------------------------------------------------
    \9\ 43 C.F.R.  10.4(d)(1).
    \10\ Draft proposal  10.5(c).
    \11\ Draft proposal  10.5(c)(1).
    \12\ Draft proposal  10.5(d).
    \13\ Draft proposal  10.5(e).
---------------------------------------------------------------------------
    NATHPO strongly objects to both of these changes. Three working/
business days is sufficient time to enable the Federal official to 
carry out the required tasks to ensure that the discovered cultural 
items are protected. Elimination of the consultation requirement is 
certainly inconsistent with the Secretary's goal of strengthening 
government-to-government relationships between the Federal government 
and Indian Tribes, particularly in a situation involving an issue as 
sensitive as the protection of tribal ancestors and other cultural 
items where NAGPRA affirms ownership or control in the time.
    Plan of Action. The current regulations require that following 
consultation with lineal descendants and affiliated Indian Tribes and 
Native Hawaiian organizations, the Federal agency official must 
prepare, approve, and sign a written plan of action to identify the 
kinds of objects considered as cultural items, specific information 
used to determine custody, planned treatment, care and handling of 
recovered cultural items, planned archeological recording of the 
cultural items recovered, any kind of analysis planned for each kind of 
object, any steps to be followed to contact Indian Tribe officials, the 
kinds of traditional treatment to be afforded the cultural items by 
Tribal members, the nature of reports to be prepared, and the planned 
disposition of the cultural items. \14\ The Department of the 
Interior's draft proposal would eliminate this requirement entirely and 
replace it with a ``certification'' sent only to the person responsible 
for the ground disturbing activity affirming that a reasonable effort 
has been made to secure and protect the cultural items and that all 
ground-disturbing activity in the area of the discovery has stopped; 
instructing if further actions are needed to secure, protect, or 
stabilize the cultural item; proposing a timeline and method for 
excavation of the cultural items, if applicable; and identifying a date 
on which lawful ground-disturbing activity may resume in the area of 
the discovery. \15\ The entire process as re-envisioned by the 
Department of the Interior would be done without consultation or even 
notification of the lineal descendants or affiliated Indian Tribes.
---------------------------------------------------------------------------
    \14\ 43 C.F.R.  10.5(e).
    \15\ Draft Proposal  10.5(e).
---------------------------------------------------------------------------
    Ceasing Activity in the Area of the Discovery. In NAGPRA, Congress 
requires the cessation of activity in the area where a cultural item is 
discovered from the moment of the actual discovery until a time at 
least thirty days after the Federal official certifies receipt of 
notification, after which the activity ``may'' resume. \16\ The current 
regulations provide an option to shorten the thirty-day period if a 
written, binding agreement is executed between the Federal agency and 
the affiliated Indian Tribes or Native Hawaiian organizations which 
adopts a recovery plan for the excavation or removal of the cultural 
items. \17\ The Department of the Interior's draft proposal slightly 
extends the cession period by counting business days instead of 
calendar days, which NATHPO supports, but then changes the 
discretionary minimum period in the current regulations to a mandatory 
maximum period--''no later than''--which the Federal agency is 
seemingly authorized to shorten at will without consultation with the 
affected lineal descendants, Indian Tribes, and Native Hawaiian 
organizations. \18\ NATHPO strongly objects to this proposed change and 
believes it conflicts with the clear language of NAGPRA.
---------------------------------------------------------------------------
    \16\ 25 U.S.C.  3002(d)(1).
    \17\ 33 43 C.F.R.  10.4(d)(2).
    \18\ Draft Proposal  10.5(e)(4).
---------------------------------------------------------------------------
    Overall, NATHPO is very disappointed in the Department of the 
Interior's proposed changes to the discovery provisions of the 
regulations. The primary purpose of NAGPRA is to protect Native 
American burial sites and the removal of cultural items from Federal, 
Indian, and Native Hawaiian lands. \19\ NATHPO is shocked that the 
Department of the Interior would now propose to conduct this process 
without full consultation with the lineal descendants and affiliated 
Indian Tribes and Native Hawaiian organizations.
---------------------------------------------------------------------------
    \19\ Providing for the Protection of Native American Graves, and 
for Other Purposes, H. Rpt. 101-877, at 8 (1989).

    Question 6. What is the role of Tribal Historic Preservation 
Offices in groundbreaking activities off Tribal lands with regards to 
NAGPRA.
    Answer. THPOs are often designated by their Tribe to serve as its 
official NAGPRA contact. In this role, they respond to notifications 
from federal agency officials regarding inadvertent discoveries on 
Federal lands for any cultural items that are either culturally 
affiliated with their Tribe or were discovered on lands aboriginally 
occupied by their Tribe. They may negotiate with federal agency 
officials in the development of comprehensive agreements prior to 
initiation of any planned excavations that are likely to recover Native 
American cultural items and may be authorized to sign such agreements 
on behalf of their Tribe. THPOs often serve as the liaison between 
Federal agency officials and their Tribe's traditional religious 
leaders. THPOs are also often authorized to receive Native American 
cultural items excavated or discovered on federal lands from federal 
agency officials and to coordinate their appropriate disposition.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Ben Ray Lujan to 
                           Rosita Worl, Ph.D.
    Question 1. Dr. Worl, what would enacting the STOP Act mean for 
expanding the scope, efficacy and intent of NAGPRA?
    Answer. Expanding the scope, efficacy and intent of NAGPRA by 
enacting the STOP Act fills a major void in NAGPRA which does not 
protect cultural heritage objects from export or from trafficking via 
international auction venues through which hundreds of such items are 
exchanged among private collectors on a regular basis. Reconnecting 
Native American communities with their cultural traditions through 
restoration of the cultural objects made by their ancestors is the 
greatest benefit of the STOP Act, as it remains under NAGPRA. 
Currently, the only recourse for an Indian tribe or NHO to prevent the 
international auction of such items is through persuasion or by 
arranging for their purchase, both of which are beyond the reach of 
NAGPRA and outside the realm of the possible for tribes from a 
practical standpoint. For example, in 2014, with assistance and support 
from the FBI and the State Dept. and the U.S. Embassy in Paris, SHI 
attempted to persuade an auction house in Paris to remove a sacred 
object from an upcoming auction. The auction house refused the request 
citing French laws that did not prohibit such sales. In a very unusual 
turnaround, SHI was later contacted by a non-profit organization in Los 
Angeles and was informed that an unnamed board member, using personal 
funds, attended the auction and purchased Hopi, Apache and Tlingit 
items during the auction. This individual then offered to repatriate 
the Tlingit item to SHI.
    This item was a painted side of a bent wood box that was likely 100 
years old or older. Due to the age of the object, the repatriation 
provisions of NAGPRA, Section 7, would not apply. NAGPRA is limited in 
scope because it only addresses cultural items taken from federal or 
tribal lands after the passage of the act (1990). The STOP Act includes 
provisions that would apply to such tangible cultural heritage under 
Section 8, Voluntary Return. Furthermore, the STOP Act authorizes the 
President to request agreements from foreign nations to encourage the 
voluntary return of such items. The STOP Act thus provides mechanisms 
not available in NAGPRA to facilitate the return of cultural heritage 
from foreign nations including those that are put up for sale in 
auctions. Such provisions are significant for SHI because thousands of 
Tlingit, Haida and Tsimshian items have been removed for collections in 
European museums starting in the late 1700s, which then became objects 
of desire by individual collectors giving rise to the intense 
contemporary interest in auctions of such items in Paris and other 
European cities.
    The STOP Act would significantly enhance the protections of Native 
American tangible cultural heritage by extending the scope of NAGPRA 
and ARPA into the arenas of exportation and international exchange of 
these items which currently have limited regulation under federal law. 
It would fulfill the promise of NAGPRA to protect and facilitate the 
return such items that have been unlawfully alienated from Indian 
tribes and have entered the international arena.

    Question 2. Dr. Worl, are current NAGPRA criminal penalties 
sufficient to stop the trafficking and exportation of cultural 
patrimony? If not, how would increasing criminal penalties from 5 to 10 
years of imprisonment, as the STOP Act does, help to deter illegal 
trafficking of cultural items and human remains, both domestically and 
abroad? In addition, right now, the criminal standard requires an 
individual to ``know'' they are violating 18 USC 1170, as opposed to 
``should have known.'' Do you recommend changing the criminal standard?
    Answer. Existing criminal penalties under NAGPRA for theft and 
trafficking in Native American cultural items are grossly inadequate to 
discourage such practices. The frequency to which the 5-year 
imprisonment penalty has been imposed in actual cases is unknown. In 
one egregious case of which I am familiar, the trafficking of Native 
American human remains and funerary objects resulted in a sentence of 
only two years. \1\
---------------------------------------------------------------------------
    \1\ In 1999, after a two-year undercover investigation by the 
National Park Service (NPS) special agents purchased Native American 
human remains and funerary objects from a store in Island Springs, 
Virginia. The store owner and his son were convicted of violating the 
trafficking provisions of NAGPRA for the illegal sale of these remains. 
They were also convicted of violating ARPA for the illegal sale of 
archaeological resources and violating the Lacey Act for the illegal 
sale of endangered/threatened species. In 2002, the store owner was 
sentenced to two years in jail and fined $17,575, and two vehicles 
(including a 2000 Ford Excursion) were seized. (Information Sheet: 
Human Remains Confiscated in NAGPRA Trafficking Case, NPS Northeast 
Region, June 29, 2005.)
---------------------------------------------------------------------------
    Calling out Native American human remains and cultural items as 
defined in NAGPRA and ARPA for increased penalties of imprisonment for 
trafficking and exportation, and ensuring that such penalties are 
imposed, would constitute a significant response to such cases and 
contribute substantially to deterring trafficking of these items.
    The STOP Act will serve as a powerful deterrent to those who claim 
ignorance that the objects they wish to export or sell by auction are 
not highly important historical, cultural and sacred objects to Indian 
tribes or NHOs. Ignorance of the historical and cultural significance 
of these items should not be considered a legitimate defense against 
illegal trafficking and exportation for those who profess knowledge of 
the value of such items (such as collectors and dealers). By enabling 
more substantial penalties for offenders and clarifying that the 
``ignorance defense'' is unacceptable, the Act will provide a criminal 
standard that is commensurate with the offense.

    Question 3. Dr. Worl, given that the law specifies civil penalty 
amounts be entirely determined by regulations, do you feel that the new 
regulatory changes for civil penalties are sufficient for museum non-
compliance?
    Answer. Civil penalties for museums of $7,037 per violation for any 
failure to comply with NAGPRA is inadequate under present 
circumstances, more than 30 years after passage of NAGPRA. Thirty (30) 
years is more than adequate time for museums to have learned the 
intricacies of NAGPRA and find ways to comply with all provisions in 
the act. We would suggest a minimum penalty of $10,000-15,000 for each 
failure to comply.
    There is very limited data available about the incidence of failure 
to comply on the part of museums. A lack of understanding of the scope 
of the problem contributes to the perception that a lower penalty may 
be sufficient to correct the problems. In the FY 2017 National NAGPRA 
Program Annual Report, allegations of failure to comply with NAGPRA had 
been received against 115 museums, fewer than half had been 
investigated, allegations were substantiated against 22 museums and 
only 11 museums had been assessed a civil penalty (Comments on draft 
proposed NAGPRA regulations submitted by the National Association of 
Tribal Historic Preservation Officers (NATHPO), Sept. 10, 2021). 
According to the NATHPO comments, the National NAGPRA Program has 
refused to provide subsequent data on the number of allegations or the 
number of penalties assessed during subsequent years. We can only 
assume that a substantial number of museums remain out of compliance 
with NAGPRA. We support a higher penalty for any failure to comply with 
NAGPRA.

    Question 4. Dr. Worl, do the new regulations put enough pressure on 
museums to expedite the repatriation process and do you trust that 
Tribal concerns raised during the consultation process for the new 
regulations will be passed along to the Review Committee?
    Answer. Yes, the new regulations put adequate pressure on museums 
to expedite the repatriation process. However, there is no guarantee 
that Tribal concerns raised during the consultation process for the new 
regulations will be passed along to the Review Committee. I do not 
trust that this will be carried out without some sort of codification 
in the draft regulations.

    Question 5. Dr. Worl, what reforms to NAGPRA are needed to curb the 
sale of cultural items by auction houses, and how could these reforms 
be considered in the new draft NAGPRA regulations put forth by the 
National Park Service?
    Answer. This issue is of great concern to tribes across the U.S. 
Unfortunately, NAGPRA is silent on this topic since it relates to the 
sale of cultural items in private collections and private ownership. A 
new law or provision in NAGPRA would be necessary to address this 
issue. I do not see an avenue in the new draft regulations to address 
it.

    Question 6. Dr. Worl, what are the implications of  10.5(c) of the 
proposed NAGPRA regulations which changes the process of Tribal and 
Native Hawaiian Organization notification immediately following the 
discovery of Native American items or remains?
    Answer. This has serious implications to the established NAGPRA 
process which requires that the Federal official notify by telephone 
the appropriate Indian tribes or NHOs. Furthermore, the official is 
responsible to initiate consultation on the discovery at this time. 
While the Federal official is required to take immediate steps to 
protect and secure any cultural items thus discovered, any such actions 
will also be part of the consultation that will take place at this 
time. This procedure ensures that Indian tribes and NHOs are directly 
involved very early in any Federal response to the discovery.
    In contrast, under the proposed regulations there is no similar 
mandate for early and substantive involvement of tribes or NHOs in the 
Federal response. The immediate notification of Indian tribes or NHOs 
after a discovery is not mandated, nor is there a requirement for any 
consultation at this point in the process. The timing of tribal 
notification and the scope of communication is at the discretion of the 
Federal official. As described below (response to Question 8), this 
might occur up to two weeks or longer after the discovery. The 
principal responsibility of the Federal official at this point is to 
ensure that all cultural items are protected and secured, and once this 
has been accomplished to evaluate whether further excavation will 
follow. Indian tribes will be notified if there is a Comprehensive 
Agreement in place, but there is no time constraint about when that 
might happen except as may exist in the agreement. Tribes will be 
notified later after the Federal official decides to proceed with 
excavations.

    Question 7. Dr. Worl, under  10.5(d) of the proposed NAGPRA 
regulations, why is there no Plan of Action required?
    Answer. Under the proposed NAGPRA regulations ( 10.5(d)), it 
appears that Plans of Action are dropped and replaced by a streamlined 
process that incorporates Comprehensive Agreements in lieu of Plans of 
Action. The Plan of Action is a key document that should not be 
eliminated because it ensures that there is full and in-depth 
consultation upon a discovery of cultural item(s) and prior to 
continuing the excavation or engaging in new excavations, immediately 
after a discovery has been made. Existing regulations ensure that 
Indian tribes and NHOs participate in the development of Plans of 
Action in response to specific discoveries (planned or inadvertent) and 
provide the means for tribal entities to incorporate the procedures 
that they consider will result in their cultural items being treated 
with respect according to their customs and traditions. Plans of Action 
have the advantage of responding in a very timely manner to instances 
of discovery. The existing regulations provide detailed and specific 
guidance to federal officials regarding this document which is prepared 
in consultation with affiliated tribes or NHOs and is of great benefit 
to them. Plans of Action are more substantive than comprehensive 
agreements, address the specific and unique conditions of a planned 
action or inadvertent discovery, and are greatly preferred as compared 
to the more generalized comprehensive agreements. In fact, they can 
supersede Comprehensive Agreements if carried out as described in the 
existing regulations.
    Specifically, please refer to  10.3(c), Procedures, in existing 
regulations for detailed specifications including prior written 
notification by federal officials of Indian tribes or NHOs (including 
those that are or are likely to be culturally affiliated with cultural 
items that may be encountered during the activity, or those on whose 
aboriginal lands the project resides); in-person consultations about 
the agency's proposed treatment of cultural items that may be exposed; 
and the completion of a written Plan of Action prior to the start of 
the activity.

    Question 8. Dr. Worl, what course of action is required when there 
is an unintentional discovery of cultural items, such as ground 
disturbances due to (1) a flood or other weather event, (2) ongoing 
maintenance such as cleaning a culvert, or (3) unauthorized excavation 
of Native American graves such as carried out by thieves? What action 
is required under the existing NAGPRA regulations and under the 
proposed NAGPRA regulations?
    Answer. Under the existing regulations, all three of these 
circumstances will be governed by the procedures for inadvertent 
discoveries on Federal lands ( 10.4). The person who makes the 
discovery provides immediate (telephone) notification with written 
confirmation to the responsible Federal agency official. The Federal 
official takes immediate steps to further secure and protect the 
cultural items including stabilization or covering, notifies by 
telephone the appropriate Indian tribes or NHOs and initiates 
consultation on the discovery. The official will follow NAGPRA 
procedures for intentional excavations if it is decided to the cultural 
items must be removed or excavated.
    Under proposed regulations, the person who makes the discovery must 
immediately report the occurrence to the responsible Federal agency 
official and send written documentation to the official within three 
business days. Within five business days after receiving written 
documentation of the discovery, the Federal official must ensure that a 
reasonable effort has been made to secure and protect the cultural 
items. The Federal proceeds to evaluate the need for excavation of the 
cultural item(s). Excavation may be authorized only after compliance 
with  10.6 (Excavation) or  10.4(b) (Comprehensive Agreement). Under 
 10.6 (Excavation), the Federal official may authorize an excavation 
only after consultation with the appropriate Indian tribes and NHOs. 
Under  10.4(b) (Comprehensive Agreement), the official notifies the 
appropriate Indian tribes and NHOs. The Federal official may authorize 
an excavation by providing a written authorization.
    The consultation provisions in the existing regulations are 
significantly compromised under the proposed regulations. The proposed 
regulations do not provide for immediate (telephone) notification and 
consultation with Indian tribes or NHOs following discovery of a 
cultural item(s). Instead, the Federal official is notified. The 
Federal official decides the appropriate treatment of the cultural 
items following discovery (methods of securing the excavation site and 
protecting the items) and may proceed without notifying the tribes. The 
Federal official evaluates the need for excavation of the cultural 
item(s). The emphasis of the process, as outlined in the draft 
regulations relating to a Comprehensive Agreement or the consultation 
following a discovery, is clearly on the process of excavation. If the 
excavation activity is governed by a Comprehensive Agreement, the 
Federal official is only required to inform consulting parties of the 
discovery or excavation.
    One of the major strengths of NAGPRA is the emphasis on 
consultation. In my view, this attribute is significantly compromised 
by the draft regulations regarding the Federal agency responses to 
discoveries. The Plan of Action has been removed from the process, 
which is a major document detailing the response to an inadvertent 
discovery by a Federal agency developed through consultation and with 
the participation of Indian tribes or NHOs in the actual response. 
Plans of Action are developed prior to the start of an activity that 
may result in a discovery, and as such ensure there is an efficient use 
of time following a discovery. Under the proposed regulations, if 
consultations regarding a specific discovery actually take place (which 
is not guaranteed), these discussions occur after the discovery when 
there is a time pressure to complete the process within a short time 
period. This is a poor way conduct business with Indian tribes and 
NHOs. It is disrespectful and places a burden on them to comply with 
the interests of the Federal agency.
    The draft regulations reduce the emphasis on a timely notification 
and response to discoveries on the part of the Federal agency which is 
unacceptable. The person who makes the discovery has three business 
days to send written notification to the responsible Federal official, 
after the receipt of which the official has another five business days 
to ensure that the discovery has been secured and the ground-disturbing 
activity has stopped. This means that it could take 2-3 weeks to 
confirm an inadvertent discovery and to protect and secure the site 
from which cultural items were removed or exposed. This delay is 
unacceptable.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. John Hoeven to 
                              Joy Beasley
    Question 1. In your role as Associate Director for Cultural 
Resources Partnerships and Science, what successes have you seen with 
repatriating Native American human remains and other cultural items?
    Answer. As Congress envisioned, repatriations have resulted in a 
continuing dialogue and mutually beneficial relationship between Indian 
Tribes and Native Hawaiian organizations and some museums and Federal 
agencies. All parties have found the benefits of repatriation extend 
well beyond the transfer of a specific item or collection. Since 1990, 
the National Park Service has published almost 4,000 notices, allowing 
for the repatriation of over 84,000 Native American ancestral remains 
and over 1.5 million funerary objects. Nationwide, over 20 percent of 
museums and Federal agencies have completed the work to repatriate all 
of the Native American human remains in their collections. In some 
states, like North Dakota, Alaska, and Hawaii, a majority of the 
ancestral remains removed from the state have been repatriated (88 
percent in North Dakota; 82 percent in Alaska; and 97 percent in 
Hawai`i).

    Question 2. What challenges still remain?
    Answer. Despite a number of success stories, less than half of the 
Native American ancestors in collections have been returned to their 
traditional caretakers, largely due to identification of those 
ancestors as ``culturally unidentifiable.'' Over 117,576 Native 
American individuals are still in museum and Federal agency 
collections, and 94 percent of those have not been culturally 
affiliated with any present-day Indian Tribe or Native Hawaiian 
organization. Under the current regulations, museums and Federal 
agencies are not required to move the regulatory process forward unless 
requested by Indian Tribes or Native Hawaiian organizations.
    The Department is also aware that some collections subject to 
NAGPRA remain unreported. Many Federal agencies are still trying to 
locate extensive collections in non-Federal repositories in order to 
complete the NAGPRA compliance process. Likewise, museums are 
continuing to discover previously unknown or unreported collections 
subject to NAGPRA that should be returned to their traditional 
caretakers. In addition to repatriation of collections, the current 
regulations, which are repetitive and at times confusing, have led to 
inconsistent implementation of NAGPRA by Federal land managers. The 
Department looks forward to working with stakeholders on revising the 
current regulations to simplify, improve, and bring more consistency to 
the regulatory process.

    Question 3. Under the proposed revised regulations for NAGPRA, is 
tribal consultation emphasized as an important part of the repatriation 
process?
    Answer. In the Act and the existing regulations, consultation is at 
the center of all repatriation activities. The Department, however, has 
heard repeatedly from Indian Tribes and Native Hawaiian organizations 
that meaningful consultation is a continual challenge in repatriation 
efforts. The Department believes changes to the regulations will help 
make consultation on repatriation more meaningful and robust. The 
Department has proposed adding to the regulations a definition of 
consultation. It also proposes to shift the burden of initiating 
consultation from Indian Tribes and Native Hawaiian organizations to 
museums and Federal agencies. The Department is committed to 
emphasizing in the revised regulations deference to Native American 
customs, traditions, and the traditional knowledge of lineal 
descendants, Indian Tribes, and Native Hawaiian organizations, whenever 
possible in the repatriation process.

    Question 4. What is the role of the Tribe when there is an 
inadvertent discovery or planned excavation of Native American cultural 
items on federal or tribal lands?
    Answer. On all Tribal lands in Alaska and the continental United 
States, the Act requires certain actions be taken by the appropriate 
official for the Indian Tribe (including Alaska Native villages) when 
there is a discovery or excavation of Native American human remains or 
cultural items.
    On all Federal lands in the United States, the Act requires certain 
actions be taken by the appropriate official for the Federal land 
managing agency when there is a discovery or excavation of Native 
American human remains or cultural items. The existing regulations 
require consultation with the Tribe after a discovery is made. In 
revising the regulations, the Department is committed to strengthening, 
to the maximum extent possible, the requirement for consultation with 
Indian Tribes, Alaskan Native Villages, and Native Hawaiian 
organizations on any discovery or excavation on Federal lands. The 
Department will propose, in revising the regulations, a maximum number 
of days before an activity could resume, allowing the appropriate 
official time to consult with Indian Tribes and Native Hawaiian 
organizations.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Brian Schatz to 
                              Joy Beasley
    Question 1. Why does the NAGPRA Review Committee report for 2018-
2019 not include specific, complete, and up-to-date numbers related to 
the status of NAGPRA civil and criminal compliance?
    Answer. The NAGPRA Review Committee does not have any 
responsibilities under the Act, the regulations, or its charter for 
civil penalties. Therefore, the NAGPRA Review Committee report does not 
include specific information regarding civil and criminal compliance.
    The Secretary of the Interior has the responsibility for assessing 
penalties. On behalf of the Secretary, the National NAGPRA Program 
reports annually on the number of allegations received (0 in 2019, 0 in 
2020, 1 in 2021) and the amount of funds collected for penalties 
($59,111 since 1990). These statistics are appended to the Review 
Committee report to Congress (for 2018-2019, see page 10). The National 
NAGPRA Program is working to develop new reporting methods for civil 
enforcement activities and expects to provide additional statistical 
information in the NAGPRA Program Report for FY 2022.

    Question 2. To date, how many total allegations of failure to 
comply with NAGPRA has the National Park Service (NPS) received?
    Answer. The National Park Service has received 142 allegations of 
failure to comply with NAGPRA. Some allegations involve multiple 
museums and are counted as more than one allegation. In other cases, an 
allegation against one museum might result in an affirmation, in part, 
and a determination of no failure, in another part, and those 
allegations are counted separately. One allegation may result in 
multiple violations but are still reported here as only one allegation. 
As a result of how allegations are counted, the figures reported below 
differ from what has been previously reported by the National Park 
Service. Previous reports on enforcement counted the number of letters 
received, the number of entities involved, and the number of violations 
determined. The National Park Service is developing new reporting 
methods for enforcement activities based on the number of allegations 
as described below.

    a.1 How many were affirmed?

        26 allegations were affirmed.

    a.2 Of those affirmed, how many civil penalties have been issued?

        15 allegations resulted in a penalty.
        4 allegations settled by other means.
        7  allegations resulted in a finding that a penalty was not an 
        appropriate remedy.

    b. How many were determined not to be a failure?

        52 allegations were determined not to be a failure.

    c. How many were not investigated?

        64 allegations were evaluated but not investigated. See 
        Question 3.

    Question 3. Is there a backlog of allegations pending 
investigation?
    Answer. There are currently 17 allegations that have been referred 
for investigation; 42 allegations that do not require an investigation 
but that do require further evaluation after an initial determination 
was made; and 5 allegations that do not require investigation and can 
be administratively closed.

    a. How many allegations are currently pending investigation?

        17 allegations are currently pending investigation.

    b. What is the date of the oldest allegation still pending 
investigation?

    Chronology of oldest allegation:

        1999--Allegation received;
        2004--Referred for investigation;
        2010--Investigated in part;
        2013--Investigated in part.

    c. What is the average age of the allegations still pending 
investigation?

        Average age of allegations still pending investigation is 11 
        years.

    d. Where in the administrative process are these allegations still 
pending investigation?

    In order of priority:

        1 allegation is actively being investigated;
        2 allegations have not been investigated;
        4 allegations have been investigated in part;
        2 allegations relate to previously resolved cases;
        7 allegations relate to already repatriated items;
        1 allegation investigation on hold.

    Question 4. We understand the NAGPRA Review Committee is currently 
reviewing the draft proposed rule. Will you share comments made by 
Tribes, Native Hawaiian Organizations, and their representatives with 
the Review Committee to ensure it can fulfill its statutory 
responsibility to advise the Secretary in the development of the 
regulations? What other steps will you take to ensure robust 
participation by the Review Committee?
    Answer. The Department plans on publishing direct responses to all 
comments received from Indian Tribes and Native Hawaiian organizations 
during consultation. This document will include a summary of all 
comments received while protecting the anonymity of each commentor. 
Once a proposed rule is published, the Department will conduct 
additional nation-to-nation consultation with Indian Tribes and Native 
Hawaiian organizations. In July of 2021, the Secretary (through the 
Designated Federal Official) requested that the Review Committee review 
the draft regulations publicly available and develop written 
recommendations for consideration. Since then, the Review Committee has 
scheduled 37 hours of public meetings and has devoted nearly 50 percent 
of that time to discussing the revised regulations. The Department 
appreciates the input provided by the Review Committee on the draft 
regulations.

    Question 5. How would moving NAGPRA enforcement to the Bureau of 
Indian Affairs impact implementation of the law? What other impacts 
would such a move have?
    Answer. Under the Act, the Secretary has the authority to delegate 
administrative responsibilities for NAGPRA. The Department has 
identified this as an issue and sought input from Indian Tribes and 
Native Hawaiian organizations during consultation on the NAGPRA 
regulations. The Department received 43 comments on the placement of 
the NAGPRA Program during recent consultation and is still considering 
how to implement any changes to the current delegations of authority. 
Enforcement and implementation responsibilities would remain consistent 
regardless of whether those duties were performed by the National Park 
Service or the Bureau of Indian Affairs.

    Question 6. Does NAGPRA apply to private museums that receive 
funding through the CARES Act, the American Rescue Plan Act, or other 
recent Congressional funding bills? If so, how will you ensure these 
museums comply with NAGPRA, and what role will the new civil penalties 
investigator play?
    Answer. NAGPRA applies to any institution that receives Federal 
funds and has possession or control of Native American human remains or 
cultural items. Receipt of Federal funds may be direct or indirect and 
is determined on a case-by-case basis. The revised regulations propose 
to include additional information to assist institutions in determining 
if NAGPRA applies. The goal of increasing enforcement activities is to 
encourage museums to come into compliance before an allegation is made 
or an investigation is required.

    Question 7. Is Interior looking into application of NAGPRA to 
Indian boarding school burial sites as part of its Federal Indian 
Boarding School Initiative? What is the status of the Federal Indian 
Boarding School Initiative's investigation and report?
    Answer. The application of NAGPRA to Indian boarding school burial 
sites depends largely on where the cemetery is located. NAGPRA applies 
to intentional excavations on Federal or Tribal land, including 
cemeteries. Questions about the application of NAGPRA to Indian 
boarding schools were raised during both NAGPRA and Federal Indian 
Boarding School Initiative consultations. In revising the NAGPRA 
regulations, the Department cannot modify the definition of ``Federal 
lands'' as provided in the Act, but the Department does encourage the 
custodians of boarding school burial sites and related records to fully 
consult with Indian Tribes and NHOs on identification, disinterment, 
and repatriation of Native American children. The Department stands 
ready to fully assist Indian Tribes and NHOs in that process to the 
fullest extent of its authority.
    The Federal Indian Boarding School Initiative report, Volume 1, was 
published on May 11, 2022.

    Question 8. During the hearing, you stated that the 2020-2021 
NAGPRA Review Committee Report to Congress was finalized at the end of 
November 2021 and is currently being prepared for transmittal to 
Congress. Please submit a copy of that report to the Committee at your 
earliest opportunity for the hearing record. Additionally, Congress did 
not receive the NAGPRA Review Committee's Report for 2018-2019 until 
January of 2022. Can you commit the Department to timely submissions of 
the Review Committee Report to Congress in the future?
    Answer. We transmitted the 2020-2021 report in June of this year. 
Unique circumstances led to the delayed transmission of the 2018-2019 
report. On June 28, 2021, the Review Committee requested the National 
Park Service distribute the FY 2019 report as prepared in October 2019 
as a separate report instead of combining it with a FY 2020 report. The 
2018-2019 report was transmitted electronically to members of Congress 
in December 2021.

    Question 9. Have NAGPRA consultations been impacted by concerns 
about the confidentiality of culturally sensitive information, and the 
lack of protection from disclosure under the Freedom of Information 
Act? Would adding Freedom of Information Act protections to the statute 
make repatriation a more efficient and effective process for all 
parties?
    Answer. The Freedom of Information Act (FOIA) does not protect 
sensitive cultural information on its own. Specific statutes such as 
Archaeological Resources Protection Act or National Historic 
Preservation Act include exemptions under FOIA, but NAGPRA does not. 
NAGPRA does not require sensitive information to be recorded during 
consultation, but some museums and Federal agencies record cultural 
information that might be sensitive with NAGPRA records submitted to 
the Department. As a result, the Department must release that 
information when requested under FOIA. The Department will likely 
propose revisions in the regulations to clarify that submissions should 
not contain any information that might be sensitive. Furthermore, the 
current regulations and proposed regulations require museums and 
Federal agencies to protect sensitive information identified by 
consulting parties after completing a repatriation.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Ben Ray Lujan to 
                              Joy Beasley
    Question 1. I am grateful to see that the National Park Service has 
hired David Barland- Liles as a full-time civil penalties investigator 
to ensure museums comply with the law. Under the current NAGPRA 
regulations, there are civil penalties if museums violate any of 9 
specific actions. However, under the proposed NAGPRA regulations, civil 
penalties for museums extend to any violation of NAGPRA. How will Mr. 
Barland-Liles' civil penalty investigation work change if the proposed 
NAGPRA regulations are adopted?
    Answer. The Department believes changes to the regulations for 
civil penalties will decrease the burden on the complainant who alleges 
the failure as well as the investigator who must identify relevant 
facts. Currently, the civil penalty process requires additional time 
and resources in the initial phase for the complainant to identify 
which of the specific 9 ways a museum has failed to comply and the 
investigator to enumerate violations accordingly. By removing the 
limitations on how a museum might fail to comply, a broad allegation 
may lead the investigator to discover facts that show specific failures 
to comply, which can be enumerated as individual violations.

    Question 2. How does the National Park Service investigate 
allegations of criminal violations?
    Answer. The National Park Service does not have jurisdiction over 
any criminal violations of NAGPRA. Criminal violations are under the 
jurisdiction of the appropriate land managing agency or the Department 
of Justice.

    Question 3. Given that the National Park Service responds to every 
NAGPRA inquiry, but its role in enforcing NAGPRA can be limited 
depending on jurisdiction, how does the National Park Service 
coordinate with other federal agencies to resolve pending inquiries?
    Answer. The National Park Service has long established 
relationships with relevant programs in the Department of Justice and 
with land managing agencies. The new full-time investigator for the 
National NAGPRA Program is tasked with continuing and strengthening 
those relationships, as well as developing new partnerships, 
specifically with state and local law enforcement that might also have 
jurisdiction.

    Question 4. I understand that in many instances, the National Park 
Service does not have the resources to monitor all auction sales and 
can rely on requests from Tribes and individuals to intercede on their 
behalf. How does the National Park Service consider or refer NAGPRA 
requests that do not go through the official process, such as requests 
to intercede on behalf of a pot or treaty being sold at private 
auction? To reform the way these requests are handled by the 
administration, would new legislation amending NAGPRA be necessary? 
Does the statute need a new mechanism to help facilitate the return of 
NAGPRA items and remains held by private parties?
    Answer. The National Park Service regularly receives information 
related to auctions of Native American cultural items. Any potential 
criminal violations are referred to the proper authorities with 
jurisdiction. When requested by Indian Tribes to assist, the Department 
provides information on the requirements of NAGPRA and an explanation 
on how repatriation under NAGPRA works. In several cases, this has 
proved useful in repatriations that occur voluntarily outside of the 
requirements of the Act. Additionally, the National Park Service can 
facilitate connections with museums, Indian Tribes, and Native Hawaiian 
organizations, which are already involved in repatriations under 
NAGPRA, who can often assist with private repatriations. Regarding 
legislative changes, the Department is happy to provide technical 
assistance.

    Question 5. Another concern I have is the lack of oversight over 
social media sites, like Instagram and TikTok, where human bones are 
being bought and sold with no protections to deter potential 
traffickers of Native American remains. While some sites like Etsy, 
eBay and Facebook have tried to ban the sale of human remains, these 
are poorly enforced. I know that the National Park Service has had 
several referrals such as these and would be interested to hear how it 
coordinates with other agencies to improve oversight. Given the growing 
online market for human remains, has there been any thought to how the 
new draft NAGPRA regulations will handle circumstances like the sale of 
Native American remains on social media sites? How does the National 
Park Service currently refer such allegations and work with other 
federal agencies to investigate? In addition, right now, the criminal 
standard requires an individual to ``know'' they are violating 18 USC 
1170, as opposed to ``should have known.'' Do you recommend changing 
the criminal standard?
    Answer. The National Park Service, National NAGPRA Program, does 
not have jurisdiction over any criminal violations of NAGPRA. Criminal 
violations are under the jurisdiction of the appropriate land managing 
agency or the Department of Justice. Criminal activities detected by 
National NAGPRA Program staff beyond our jurisdiction and authority are 
referred to the appropriate investigation and interdiction entity on a 
case-by-case basis. The criminal standard is a burden of proof that 
requires specific intent and changes to that language would likely 
impact prosecution of trafficking violations.

    Question 6. In consultations last summer, the National Park Service 
estimated that 90 to 95 percent of human remains recorded under NAGPRA 
could be geographically affiliated to one or more Tribes, which would 
make them available to Tribes to request repatriation. I am concerned 
that current law incentivizes museums and Federal agencies to identify 
remains as ``culturally unidentifiable,'' even when a geographical 
origin is known. This allows the institution to retain possession and 
places the burden on Tribes to request items, show evidence of removal 
from their Tribal lands, or prove affiliation by a preponderance of the 
evidence. These procedures create an unjust balance of powers whereby 
museums do not have to explain their positions and place a higher 
burden on Tribes to reclaim what is rightfully theirs. How do the new 
draft regulations strengthen Tribes' authority in the repatriation 
process? Please specify how the new regulations clarify the standard of 
proof for establishing cultural affiliation, and how the replacement of 
``culturally unidentifiable'' with ``geographically affiliated'' will 
expand timely consultation, repatriation of objects and remains, and 
remove any incentive for museums and Federal agencies to label remains 
and objects as ``culturally unidentifiable''? And how do you anticipate 
these revised changes to the regulations will play out in New Mexico?
    Answer. After over 30 years, less than half of the Native American 
ancestors in collections have been returned to their traditional 
caretakers, largely due to identification of those ancestors as 
``culturally unidentifiable.'' Museums and Federal agencies still wield 
a significant amount of power in determining what will be repatriated. 
The Department believes this imbalance can be largely corrected with 
revisions to the regulations.
    One of the biggest challenges with NAGPRA are differences of 
interpretation. For example, cultural affiliation, which the Act 
identifies simply as a relationship between past and present people, 
has been a major barrier to effective and efficient repatriation. 
Specifically, the regulatory changes will shift the burden off Indian 
Tribes and Native Hawaiian organizations to make requests to consult 
and require museums and Federal agencies to not only initiate the 
process for consultation but complete the regulatory steps and make 
nearly all the ancestors in collections available to Indian Tribes for 
repatriation.
    The revised regulations as being drafted do not impose any new 
requirements on Indian Tribes, nor do they remove a Tribe's ability to 
make requests. Rather, the revisions will likely propose to shift the 
burden of initiating consultation from the Tribe to the museum. The 
Department recognizes and will reaffirm in the regulatory process that 
Tribal sovereignty means there is no requirement for an Indian Tribe or 
Native Hawaiian organization to act under NAGPRA unless the Tribe or 
Native Hawaiian organization chooses to do so. After consultation and 
notice by a museum, the Tribe would respond in its discretion, per 
usual, but with greater information before committing resources to the 
matter.
    In New Mexico, specifically, about 70 percent of the Native 
American human remains removed from New Mexico have completed the 
regulatory process for repatriation. The remaining 30 percent number 
just over 3,000 individual ancestors still in collections awaiting 
return to Indian Tribes and Pueblos of New Mexico. Only about 32 
percent of those ancestors (976 individuals) are in museums in New 
Mexico. Another 27 percent (848 individuals) are held by Federal 
agencies and the remaining 41 percent (1,268 individuals) are held by 
museums in other states. Revisions to the regulations would mean that 
museums in other states, as well as Federal agencies and museums in New 
Mexico, would be required to complete the process to repatriate all 
individuals known to be from the Indian Tribes and Pueblos in New 
Mexico.

    Question 7. During the week of January 17, 2022, the Bureau of Land 
Management reported vandals sprayed graffiti over the La Cieneguilla 
Petroglyphs, some 8,000 years old, in Santa Fe County, New Mexico. The 
All Pueblo Council of Governors, who represent 20 Pueblos in New Mexico 
and Texas, quickly condemned this desecration and called for the Bureau 
of Land Management and U.S. Forest Service to investigate and respond 
to the incident. In addition, just last year, the National Park Service 
had to investigate damage at the Petroglyph National Monument outside 
Albuquerque caused by visitors making cairns (mounds of rock) out of 
rocks from archaeological sites. Despite these continued threats, in 
2018 National Park Service officials stated that data on NAGPRA crimes 
had not been collated since 2011, despite agencies individually 
collecting this data. In addition, there is no federal requirement that 
agencies track NAGPRA violations and create a central repository for 
nationwide data. How is the National Park Service responding to the GAO 
report on data collection and best practices to improve coordination 
across agencies and NAGPRA enforcement? What is the status of that 
response?
    Answer. The National Park Service will report best practices 
related to data collection to help improve protection of Native 
American archeological resources. This voluntary data collection (the 
Secretary of the Interior has no legal authority to require data from 
other federal agencies) will focus on gathering information about 
Archeological Resources Protection Act (ARPA) violations and will be 
compiled by the Department Consulting Archeologist (DCA), who also 
serves as the Bureau Archeologist for the National Park Service. This 
data collection effort aimed at improving protection of Native American 
archeological resources will be compiled and distributed by the DCA at 
the end of FY 2022.

    Question 8. The Bureau of Land Management, which manages the lands 
on which the La Cieneguilla Petroglyphs are located, received a request 
for Pueblos to be more involved in land management and called for the 
Bureau to initiate Tribal consultations in light of the damage that 
occurred to these petroglyphs. There is a lot of variation across 
federal agencies interpret NAGPRA and engage in coordination and 
consultation with Tribes and Pueblos. Has the National Park Service 
engaged in similar collaboration and consultation with Tribes around 
its land management practices to ensure greater compliance with NAGPRA 
and data collection? In addition, how has Tribal co-management of 
federal lands through agency management plans improved NAGPRA 
enforcement and the management of those lands?
    Answer. The National Park Service has the authority to enter into 
collaborative management agreements with Indian Tribes. These types of 
agreements are encouraged through Secretary's Order 3342: Identifying 
Opportunities for Cooperative and Collaborative Partnerships with 
Federally Recognized Indian Tribes in the Management of Federal Lands 
and Resources. This Order defines ``co-management,'' as ``a situation 
where there is a specific legal basis that requires the delegation of 
some aspect of Federal decisionmaking or that makes co-management 
otherwise legally necessary.'' Co-management provides opportunities for 
greater Tribal involvement in land-management decisionmaking. National 
Park Service managers consult with Indian Tribes and Native Hawaiian 
organizations to develop comprehensive agreements that address land 
management activities that could result in excavation or discovery of 
Native American human remains and cultural items on National Park 
Service lands. These agreements, which are managed at the local level, 
establish a process for effectively carrying out the requirements of 
NAGPRA.

    Question 9. As of April 2021, GAO reported that the National Park 
Service and the Bureau of Indian Affairs had not implemented this 
recommendation. What steps has National Park Service taken thus far to 
implement GAO's recommendation and what is the status of those efforts? 
Once implemented, how will this recommendation enable the National Park 
Service to better prevent and respond to instances of cultural resource 
theft and damage on federal lands? GAO recommended in its 2021 report 
that the Department of the Interior should direct the National Park 
Service to identify and obtain information to target efforts to protect 
Native American cultural resources and identify risks.
    Answer. The National Park Service is compiling, per the GAO report, 
``promising practices'' to better protect Native American archeological 
sites. The Bureau Archeologist is working with Law Enforcement to 
improve data collection to track ARPA and NAGPRA violations. The 
National Park Service is developing training for law enforcement 
officers on ARPA that will be promoted across the Department of 
Interior. This training provides Law Enforcement officers tools to 
identify, document, and create prosecutable cases of archeological 
resource violations.

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