[Congressional Record Volume 142, Number 106 (Thursday, July 18, 1996)]
[Senate]
[Pages S8157-S8159]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

       By Mr. McCAIN (for himself, Mr. Inouye, Mr. Thomas, and Mr. 
     Campbell):
  S. 1970. A bill to amend the National Museum of the American Indian 
Act to make improvements in the Act, and for other purposes; to the 
Committee on Indian Affairs.


   The National Museum of the American Indian Act Amendments of 1996

 Mr. McCAIN. Mr. President, I introduce legislation to amend 
the National Museum of the American Indian Act of 1989. I am very 
pleased to be joined by Senators Inouye, Thomas and Campbell as 
original cosponsors of this legislation. I am particularly pleased to 
be joined by my good friend from Hawaii, Senator Inouye, the Vice-
Chairman of the Committee on Indian Affairs, who, with his tireless 
dedication, has championed this particular issue for many years. This 
legislation is intended to amend the National Museum of the American 
Indian Act to ensure that the requirements for the inventory, 
identification and repatriation of Native American human remains, 
associated and unassociated funerary objects, sacred objects, and 
objects of cultural patrimony in the possession of the Smithsonian 
Institution are being carried out in a manner consistent with the 
Native American Graves Protection and Repatriation Act (25 U.S.C. 
3001), so that these culturally important items can be returned to 
their rightful keepers and protectors, the Indian tribes.
  The possession of Native American human remains, funerary objects, 
sacred objects, and objects of cultural patrimony by various Federal 
agencies, museums, and private collectors has been a very contentious 
issue for Indian tribes, tribal organizations, and Native Hawaiian 
Organizations for many years. Native Americans, not unlike other 
Americans, feel that the bones of their ancestors and the objects 
buried with them are sacred and rightfully belong under the protection 
and control of their descendants. Similarly, Native Americans feel 
strongly that sacred objects and objects of cultural patrimony, which 
have been wrongfully acquired, should be returned to the appropriate 
Indian tribe or Native Hawaiian organization. On the other side of the 
debate are archeologists, anthropologists, and others from the 
scientific community who feel that there is an overriding principle of 
scientific inquiry to unearth and study the remains of the Indians of 
the past in order to understand past cultures and their histories. Over 
the years, this debate has ranged from scholarly discussion to 
impassioned arguments and finally to emotional demands by Indian people 
for understanding and respect for their right to have these culturally 
and spiritually important items to be properly returned.
  It is important to note that the Smithsonian Institution was the 
first museum to take the lead in establishing a process for the 
repatriation of Native American human remains and funerary objects. 
Under the National Museum of the American Indian Act (20 U.S.C. 80q, et 
seq.), Congress established a process for the inventory, 
identification, and repatriation of Native American human remains and 
associated funerary objects. This ground breaking legislation was a 
critical first step in facilitating thoughtful dialogue between Indian 
tribes and museums regarding the proper treatment of Native American 
human remains, funerary objects, sacred objects and objects of cultural 
patrimony. These discussions resulted in the passage of the Native 
American Graves Protection and Repatriation Act. Since the passage of 
the Act, the Smithsonian Institution has continued to work diligently 
to fulfill the mandates of the National Museum of the American Indian 
Act regarding the repatriation of Native American human remains and 
funerary objects. In fact, in certain areas the administrative policies 
of the National Museum of the American Indian and the National Museum 
of Natural History exceed the requirements of the National Museum of 
the American Indian. Since 1991 the Museum of Natural History has 
adopted the categories and repatriation provisions described in Native 
American Graves Protection and Repatriation Act as museum policy. Under 
that policy, the museum has inventoried a substantial part of its 
collection of Native American human remains and returned hundreds of 
human remains to Native American communities. The National Museum of 
the American Indian has developed a substantive repatriation policy 
that goes well beyond the requirements of the Native American Graves 
Protection and Repatriation Act in order to facilitate the 
identification and repatriation of any Native American human remains 
and objects in its collections. Under its 1991 repatriation policy, the 
National Museum of the American Indian has prepared and distributed 
both the summary of ethnographic materials and the inventory of human 
remains and funerary objects within its entire collection to all of the 
557 federally recognized Indian tribes. The Museum's summary goes 
beyond the requirements of Native American Graves Protection and 
Repatriation Act by not only including sacred objects and objects of 
cultural patrimony but also includes religious and ceremonial objects, 
and objects that are owned in common.

  Under the repatriation provisions of the National Museum of the 
American Indian Act, the Smithsonian Institution is required only to 
inventory and repatriate Native American human remains and associated 
funerary objects. Although the Native American Graves Protection and 
Repatriation Act does not cover the Smithsonian Institution, the 
Smithsonian has endeavored to meet or exceed each of the requirements 
of the Act. Despite the absence of a statutory obligation to identify 
and repatriate Native American unassociated funerary objects, sacred 
objects, and objects of cultural patrimony, the Smithsonian Institution 
has committed to complete its identification and summary of Native 
American unassociated funerary objects, sacred objects, and objects of 
cultural patrimony by December 31, 1996. Similarly, the Smithsonian has 
committed to completing its inventory of Native American human remains 
and associated funerary objects before June 1, 1998.
  Mr. President, the bill I am introducing today would provide the 
statutory authority to the Smithsonian Institution to complete its 
inventory, identification, and repatriation process for the respectful 
return of the tribal ancestors and items of cultural importance to 
Native Americans. This legislation is consistent with the 
administrative policies of the Smithsonian as it relates to 
repatriation and it is consistent with the requirements of the Native 
American Graves Protection and Repatriation Act. I would like to 
commend the tremendous progress made by the Smithsonian Institution in 
implementing a policy that respects Indian tribes and their deeply-held 
beliefs by providing for the return of the remains of their ancestors 
and relatives and the culturally significant objects in its possession. 
I would like to add that representatives of the Smithsonian have worked 
closely with the Committee in the preparation of this legislation and 
have continued to demonstrate their serious commitment to returning 
these sacred remains and objects to their rightful owners, the Indian 
tribes.
  Mr. President, I ask unanimous consent that the full text of the bill 
and the accompanying section by section analysis appear in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 1970

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE; REFERENCES.

       (a) Short Title.--This Act may be cited as the ``National 
     Museum of the American Indian Act Amendments of 1996''.
       (b) References.--Whenever in this Act an amendment or 
     repeal is expressed in terms of an amendment to or repeal of 
     a section or other provision, the reference shall be 
     considered to be made to a section or other provision of the 
     National Museum of the American Indian Act (20 U.S.C. 80q et 
     seq.).

     SEC. 2. BOARD OF TRUSTEES.

       Section 5(f)(1)(B) (20 U.S.C. 80q-3(f)(1)(B)) is amended by 
     striking ``an Assistant Secretary'' and inserting ``a senior 
     official''.

[[Page S8158]]

     SEC. 3. INVENTORY.

       Section 11(a) (20 U.S.C. 80q-9) is amended--
       (1) by striking ``(1)'' and inserting ``(A)'';
       (2) by striking ``(2)'' and inserting ``(B)'';
       (3) by inserting ``(1)'' before ``The Secretary''; and
       (4) by adding at the end the following new paragraphs:
       ``(2) The inventory made by the Secretary of the 
     Smithsonian Institution under paragraph (1) shall be 
     completed not later than June 1, 1998.
       ``(3) For purposes of this subsection, the term `inventory' 
     means a simple, itemized list that, to the extent 
     practicable, identifies, based upon available information 
     held by the Smithsonian Institution, the geographic and 
     cultural affiliation of the remains and objects referred to 
     in paragraph (1).''.

     SEC. 4. SUMMARY AND REPATRIATION OF UNASSOCIATED FUNERARY 
                   OBJECTS, SACRED OBJECTS, AND CULTURAL 
                   PATRIMONY.

       The National Museum of the American Indian Act is amended 
     by inserting after section 11 the following new section:

     ``SEC. 11A. SUMMARY AND REPATRIATION OF UNASSOCIATED FUNERARY 
                   OBJECTS, SACRED OBJECTS, AND CULTURAL 
                   PATRIMONY.

       ``(a) Summary.--Not later than December 31, 1996, the 
     Secretary of the Smithsonian Institution shall provide a 
     written summary that contains a summary of unassociated 
     funerary objects, sacred objects, and objects of cultural 
     patrimony (as those terms are defined in subparagraphs (B), 
     (C), and (D), respectively, of section 2(3) of the Native 
     American Graves Protection and Repatriation Act (25 U.S.C. 
     3001(3)), based upon available information held by the 
     Smithsonian Institution. The summary required under this 
     section shall include, at a minimum, the information required 
     under section 6 of the Native American Graves Protection and 
     Repatriation Act (25 U.S.C. 3004).
       ``(b) Repatriation.--Where cultural affiliation of Native 
     American unassociated funerary objects, sacred objects, and 
     objects of cultural patrimony has been established in the 
     summary prepared pursuant to subsection (a), or where a 
     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, 
     then the Smithsonian Institution shall expeditiously return 
     such unassociated funerary object, sacred object, or object 
     of cultural patrimony where--
       ``(1) the requesting party is the direct lineal descendant 
     of an individual who owned the unassociated funerary object 
     or sacred object;
       ``(2) the requesting Indian tribe or Native Hawaiian 
     organization can show that the object was owned or controlled 
     by the Indian tribe or Native Hawaiian organization; or
       ``(3) the requesting Indian tribe or Native Hawaiian 
     organization can show that the unassociated funerary object 
     or sacred object was owned or controlled by a member thereof, 
     provided that in the case where an unassociated funerary 
     object or sacred object was owned by a member thereof, there 
     are no identifiable lineal descendants of said member or the 
     lineal descendants, upon notice, have failed to make a claim 
     for the object.
       ``(c) Standard of Repatriation.--If a known lineal 
     descendant or an Indian tribe or Native Hawaiian organization 
     requests the return of Native American unassociated funerary 
     objects, sacred objects, or objects of cultural patrimony 
     pursuant to this Act and presents evidence which, if standing 
     alone before the introduction of evidence to the contrary, 
     would support a finding that the Smithsonian Institution did 
     not have the right of possession, then the Smithsonian 
     Institution shall return such objects unless it can overcome 
     such inference and prove that it has a right of possession to 
     the objects.
       ``(d) Museum Obligation.--Any museum of the Smithsonian 
     Institution which repatriates any item in good faith pursuant 
     to this Act shall not be liable for claims by an aggrieved 
     party or for claims of fiduciary duty, public trust, or 
     violations of applicable law that are inconsistent with the 
     provisions of this Act.
       ``(e) Statutory Construction.--Nothing in this section may 
     be construed to prevent the Secretary of the Smithsonian 
     Institution, with respect to any museum of the Smithsonian 
     Institution, from making an inventory or preparing a written 
     summary or carrying out the repatriation of Native American 
     human remains, associated and unassociated funerary objects, 
     sacred objects, or objects of cultural patrimony in a manner 
     that exceeds the requirements of this section.
       ``(f) Native Hawaiian Organization Defined.--For purposes 
     of this section, the term `Native Hawaiian organization' has 
     the meaning provided that term in section 2(11) of the Native 
     American Graves Protection and Repatriation Act (25 U.S.C. 
     3001(11)).''.

     SEC. 5. SPECIAL COMMITTEE.

       Section 12 (20 U.S.C. 80q-10) is amended--
       (1) in the first sentence of subsection (a), by inserting 
     ``and unassociated funerary objects, sacred objects, and 
     objects of cultural patrimony under section 11A'' before the 
     period; and
       (2) in subsection (b)--
       (A) in the matter preceding paragraph (1), by striking 
     ``five'' and inserting ``7'';
       (B) in paragraph (1)--
       (i) by striking ``three'' and inserting ``4''; and
       (ii) by striking ``and'' at the end;
       (C) by redesignating paragraph (2) as paragraph (3); and
       (D) by inserting after paragraph (1) the following:
       ``(2) at least 2 members shall be traditional Indian 
     religious leaders; and''.
                                                                    ____


  Section-by-Section Analysis of the National Museum of the American 
                     Indian Act Amendments of 1996


                        SECTION ONE. SHORT TITLE

       This section cites the short title of the Act as ``the 
     National Museum of the American Indian Act Amendments of 
     1996''. It also provides that any reference to amendment or 
     repeal in this Act shall be considered to be references to 
     the provisions of the National Museum of the American Indian 
     Act. (20 U.S.C. 80q et seq.)


                     SECTION TWO. BOARD OF TRUSTEES

       This section amends section 5 of the National Museum of the 
     American Indian Act by changing the reference to ``an 
     Assistant Secretary'' of the Smithsonian Institution to ``a 
     senior official'' of the Smithsonian.


                        SECTION THREE. INVENTORY

       This section amends section 11 of the National Museum of 
     the American Indian Act to require the inventory to be 
     conducted by the Secretary of the Smithsonian be completed 
     not later than June 1, 1998. It also defines the term 
     ``inventory'' as it is used in the Act.


    SECTION FOUR. SUMMARY AND REPATRIATION OF UNASSOCIATED FUNERARY 
            OBJECTS, SACRED OBJECTS, AND CULTURAL PATRIMONY

       This section amends the National Museum of the American 
     Indian Act by establishing a new section 11a. Section 11a 
     requires the Secretary of the Smithsonian to develop a 
     written summary of unassociated funerary objects, sacred 
     objects, and objects of cultural patrimony held by the 
     Smithsonian, based upon available information and consistent 
     with the requirements of the Native American Graves 
     Protection and Repatriation Act (25 U.S.C. 3004). The summary 
     must be completed by December 31, 1996.
       Subsection (b) requires the Smithsonian to expeditiously 
     return any Native American unassociated funerary object, 
     sacred object, or object of cultural patrimony where the 
     cultural affiliation has been established in the summary 
     prepared by the Smithsonian, or where a requesting Indian 
     tribe or Native Hawaiian Organization can show its cultural 
     affiliation with the items by a preponderance of the 
     evidence, and the requesting Indian tribe or Native Hawaiian 
     Organization can establish that the object was owned or 
     controlled by the Indian tribe or Native Hawaiian 
     Organization, or by a member of the tribe or organization. 
     The Smithsonian shall expeditiously return any object to any 
     direct lineal descendent of the owner of the object.
       Subsection (c) sets out the standard of repatriation under 
     the Act. It provides that if a known lineal descendant or an 
     Indian tribe or Native Hawaiian organization requests the 
     return of Native American unassociated funerary objects, 
     sacred objects, or objects of cultural patrimony and can make 
     a prima facie showing that the Smithsonian Institution did 
     not have the right of possession of such object, then the 
     Smithsonian must return such object unless it can prove that 
     it has the right of possession of such objects.
       Subsection (d) provides that any museum of the Smithsonian 
     Institution, which repatriates an item in good faith shall 
     not be liable for any claims of fiduciary duty, public trust, 
     or violations of State law that are inconsistent with the 
     provisions of this Act.
       Subsection (e) provides that nothing in this Act shall be 
     construed to prevent the Secretary of the Smithsonian from 
     making an inventory or preparing a written summary or 
     carrying out the repatriation of objects under this Act in a 
     manner that exceeds the requirements of this section.
       Subsection (f) defines the term ``Native Hawaiian 
     Organization'' as the term is used in this Act.


                    SECTION FIVE. SPECIAL COMMITTEE

       This section amends section 12 of the National Museum of 
     the American Indian Act by increasing the membership of the 
     Special Committee to seven and it shall include two members 
     who are traditional Indian religious leaders.
 Mr. INOUYE. Mr. President, I am pleased to join my Chairman, 
Senator John McCain, in the introduction of a bill to amend the 
National Museum of the American Indian Act.
  The amendments that this bill proposes would fulfill a commitment I 
made to other museums and scientific institutions at the time the 
Congress was considering the Native American Graves Protection and 
Repatriation Act.
  At that time, Mr. President, the National Museum of the American 
Indian was newly authorized and was engaged in establishing the 
necessary administrative structures and policies that would define its 
character as an institution.
  Amongst the issues to be addressed by the new museum was the 
development of a repatriation policy, and the

[[Page S8159]]

need to reconcile that policy with the policies of other museums in the 
Smithsonian Institution.
  Accordingly, while a general framework addressing repatriation was 
included in the National Museum of the American Indian Act that we 
adopted in 1989, the opportunity for the Smithsonian Institution to 
develop an institution-wide repatriation policy and the processes 
associated with the implementation of such a policy was requested, and 
we provided the time necessary to enable the development of that 
comprehensive policy.
  The other museums and scientific institutions that were to be covered 
under the Native American Graves Protection and Repatriation Act 
objected in the strongest possible terms to the exclusion of the 
Smithsonian Institution from the act, but ultimately agreed not to 
oppose passage of the act based in part upon my personal commitment 
that the Congress would subsequently enact legislation to assure that 
the Smithsonian Institution would be subject to Federal repatriation 
law.
  The bill we introduce today is designed, as I have indicated, to 
fulfill that commitment and to assure that the policy objectives of the 
Native American Graves Protection and Repatriation Act are extended to 
the Smithsonian Institution.
  As I complete my service as a member of the Board of Trustees of the 
National Museum of the American Indian this year, I am pleased that my 
Chairman has seized the initiative to act upon the discussions in which 
we have been engaged with the Smithsonian Institution and thereby given 
his support for carrying out my promise.
  I am hopeful that our colleagues in the Senate and the House will 
agree to act upon this legislation before the end of the 104th session 
of the Congress, and I thank my Chairman for his leadership.
                                 ______