[Senate Report 104-350]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 564
104th Congress                                                   Report
                                 SENATE

 2d Session                                                     104-350
_______________________________________________________________________


 
    TO AMEND THE NATIONAL MUSEUM OF THE AMERICAN INDIAN ACT TO MAKE 
            IMPROVEMENTS IN THE ACT, AND FOR OTHER PURPOSES

                                _______
                                

                 August 2, 1996.--Ordered to be printed

_______________________________________________________________________


    Mr. McCain, from the Committee on Indian Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 1970]

    The Committee on Indian Affairs to which was referred the 
bill (S. 1970) to amend the National Museum of the American 
Indian Act to make improvements in the Act, and for other 
purposes, having considered the same, reports favorably thereon 
without amendment and recommends that the bill do pass.

                                Purposes

    The purpose of S. 1970 is to make certain amendments to the 
National Museum of the American Indian Act of 1989, and for 
other purposes.

                               Background

    On July 18, 1996, Chairman McCain, joined by Senators 
Inouye, Thomas, and Campbell as original cosponsors, introduced 
S. 1970, a bill to make certain amendments to the National 
Museum of the American Indian Act. This legislation amends the 
Act to apply the same requirements for the identification and 
repatriation of Native American unassociated funerary objects 
sacred objects, and objects of cultural patrimony to the 
Smithsonian Institution that are currently applied to other 
museums under the Native American Graves Protection and 
Repatriation Act (25 U.S.C. 3001 et seq.).
    S. 1970 was developed at the request of the Smithsonian 
Institution and is entirely consistent with the Smithsonian's 
current administrative practices. The bill includes provisions 
that incorporate the Smithsonian's administrative deadline of 
December 31, 1996 for the completion of written summaries of 
all unassociated funerary objects, sacred objects, and objects 
of cultural patrimony in its possession. The bill also adopts 
the Smithsonian's administrative deadline of June 1, 1998 to 
complete an inventory of Native American human remains and 
funerary objects in its possession.
    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 remains of their ancestors and the objects buried with them 
are sacred and rightfully belong under the protection and 
control of their descendants. Under the National Museum of the 
American Indian Act (20 U.S.C. 80q, et seq.), the Congress 
established a process for the inventory, identification, and 
repatriation of Native American human remains and associated 
funerary objects. This Act was a critical first step in 
facilitating thoughtful dialogue between museums and Indian 
tribes regarding the proper treatment of Native American human 
remains, funerary objects, sacred objects and objects of 
cultural patrimony. Under this Act, the Smithsonian Institution 
was the first museum to establish a process for the 
repatriation of Native American human remains and funerary 
objects, which vested certain statutory rights in Indian tribes 
and their members.
    Since the passage of the Act, the Smithsonian Institution 
has worked to meet the mandates of the National Museum of the 
American Indian Act regarding the repatriation of Native 
American human remains and funeral objects. 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 Act. 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.
    To date, the Museum of Natural History has repatriated 
1,500 Native American human remains and is in the process of 
repatriating the remains of another 1,000 Native American 
individuals. In addition, the museum has provided basic 
inventory data to more than 30% of the eligible Indian tribes 
and tribal organizations in the United States. Some recent 
examples of the successful repatriation of Native American 
human remains and funerary objects by the Museum of Natural 
History include the return of 14 individuals to the Cheyenne 
and Arapaho tribes in Oklahoma, which included several victims 
of the Sand Creek Massacre, the return of 19 individuals to the 
Northern Cheyenne tribe of Montana, the return of Chief Smoke 
of the Oglala Lakota to his family in South Dakota, and the 
return of Chief Puffing Eyes of the Two Kettles Lakota to his 
family in South Dakota. In addition, the Museum has a number of 
cases in progress involving the Makah Tribe of Washington, the 
Arapaho Tribes of Wyoming and Oklahoma, the Confederated Tribes 
of Warm Springs of Oregon, the Shoshone-Bannock Tribe of Idaho, 
the San Carlos Apache Tribe and the Yavapai-Apache Tribes of 
Arizona, the Devil's Lake Sioux of North Dakota and the Yankton 
Sioux Tribe of South Dakota, as well as tribes located in 
Oklahoma, Washington, Oregon, Alaska, Montana, North Dakota, 
Minnesota, Michigan, Connecticut, Arizona, and California.
    The National Museum of the American Indian has developed a 
substantive repatriation policy that is independent of the 
policies of the Museum of Natural History and that exceeds 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 exceeds the requirements of Native 
American Graves Protection and Repatriation Act by not only 
including sacred objects and objects of cultural patrimony, but 
it also includes religious and ceremonial objects, and objects 
that are owned in common.

 s. 1970, the national museum of the american indian act amendments of 
                                  1996

    S. 1970 would require the Smithsonian Institution to apply 
the same method for repatriation of Native American 
unassociated funerary objects, sacred objects, and objects of 
cultural patrimony and the same standard for repatriation that 
are in the Native American Graves Protection and Repatriation 
Act. In addition, the bill includes language, requested by the 
Smithsonian Institution, to permit the Smithsonian Institution 
to exceed the requirements of the Act. The bill amends the 
National Museum of the American Indian Act to add definitions 
for the terms ``inventory'' and ``Native Hawaiian 
Organization.'' Finally, the bill increases the membership of 
the special committee for repatriation by adding two 
traditional Indian religious leaders. It is not the intention 
of the Committee that the expansion of the Special Committee by 
two members and its additional responsibility for unassociated 
funerary objects, sacred objects and objects of cultural 
patrimony in the Museum of Natural History should alter or 
interfere with the sole authority of the Board of Trustees of 
the National Museum of the American Indian concerning 
repatriation activities of that museum. The Committee does not 
intend the expansion of the Special Committee to result in a 
reduction in the work effort of the Museum of Natural History 
to carry out its responsibilities under the Act. Finally, the 
Committee recognizes that the additional responsibilities 
authorized under these amendments will require additional 
resources to continue the significant progress that has been 
made in the repatriation of Native American human remains, 
associated and unassociated funerary objects, sacred objects 
and objects of cultural patrimony.
    S. 1970 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.

                          Legislative History

    S. 1970 was introduced by Senator McCain, for himself and 
Senators Inouye, Thomas, and Campbell, on July 18, 1996, and 
was referred to the Committee on Indian Affairs.

            Committee Recommendation and Tabulation of Vote

    In an open business session on July 24, 1996, the Committee 
on Indian Affairs ordered the bill reported without amendment, 
with the recommendation that the Senate pass the bill as 
reported.

                      Section-by-Section Analysis

                        section 1.--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 2.--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 3.--Inventory

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

Section 4.--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 Institution 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 Institution 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, or by a member of the tribe or organization. The 
Smithsonian shall expeditiously return any such 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 applicable 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 
Institution 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 Act.
    Section (f) defines the term ``Native Hawaiian 
Organization'' as the term is used in this Act.

                     Section 5.--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, including two members who are 
traditional Indian religious leaders.

                   Cost and Budgetary Considerations

    The cost estimate for S. 1970, as calculated by the 
Congressional Budget Office is set forth below:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, August 2, 1996.
Hon. John McCain,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed S. 1970, the National Museum of the American Indian 
Act Amendments of 1996, as ordered by the Senate Committee on 
Indian Affairs on July 24, 1996. CBO estimates that enacting 
this bill would result in no significant cost to the federal 
government. Because enacting S. 1970 would not affect direct 
spending or receipts, pay-as-you-go procedures would not apply.
    S. 1970 would set a deadline of June 1, 1998, for 
completing an inventory of Indian human remains and Indian 
funerary objects in the possession or control of the 
Smithsonian Institution. The bill also would require the 
Secretary of the Smithsonian to develop, by December 31, 1996, 
a written summary of unassociated funerary objects (objects 
placed with human remains at the time of burial), sacred 
objects, and objects of cultural patrimony held by the 
Smithsonian. Further, if an Indian tribe, Native Hawaiian 
organization, or individual could prove that any of these 
objects should be returned to them, the Smithsonian would be 
required to do so. Finally, the bill would add two members to 
the special committee to monitor the inventory, identification, 
and return of such objects. Each member receives payment from 
the Smithsonian for travel and transportation, as well as a 
daily rate of pay for each day of committee-related work. CBO 
estimates that these activities would cost the Smithsonian 
Institution less than $250,000 in each of fiscal years 1997 and 
1998, subject to the availability of appropriated funds.
    This bill contains no private-sector or intergovernmental 
mandates as defined in the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4) and would impose no costs on state, local, 
or tribal governments.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Rachel 
Robertson.
            Sincerely,
                                         June E. O'Neill, Director.

                      Regulatory Impact Statement

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires each report accompanying a bill to evaluate the 
regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that S. 1970 will 
create only de minimis regulatory or paperwork impacts.

                        Executive Communications

    The Committee received the following executive 
communication from the Honorable I. Michael Heyman, Secretary 
of the Smithsonian Institution regarding S. 1970:

                                   Smithsonian Institution,
                                     Washington, DC, July 26, 1996.
Hon. John McCain,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: I would like to take this opportunity to 
comment on S. 1970, a bill to amend the National Museum of the 
American Indian Act, and for other purposes. This bill will 
formally render the Smithsonian's repatriation activities 
analogous to the provisions of the Native American Graves 
Protection and Repatriation Act (NAGPRA), 25 U.S.C. Sec. 3001 
et seq. The Smithsonian supports this bill as reported by the 
Committee.
    S. 1970 is a culmination of policies and practices that 
have been in place for many years at the National Museum of the 
American Indian (NMAI) and the National Museum of Natural 
History (NMNH). Both museums have worked diligently to develop 
individual repatriation policies which parallel many of the 
requirements established under NAGPRA and, in some instances, 
exceed NAGPRA.
    As the Smithsonian has stated for the record, NMNH has 
adopted NAGPRA's categories and repatriation provisions as 
policy since 1991. Pursuant to that policy, NMNH already has 
inventoried a substantial part of its collections of human 
remains, consulted extensively with Native American Tribes, and 
returned hundreds of human remains. It has virtually completed 
its summary of ethnographic materials. This legislation sets 
forth in statutory language the Smithsonian's commitment to 
meet mutually agreed upon deadlines for completion of an 
inventory of human remains and funerary objects and the summary 
of ethnographic materials in NMNH.
    NMAI already has completed and distributed to tribes a 
comprehensive inventory of human remains, funerary objects and 
ethnographic materials. In accordance with the NMAI's 
repatriation policy, which was passed by the Museum's Board of 
Trustees in 1991, the summary also includes the broader 
categories of religious and ceremonial objects and communally 
owned Native American property. This legislation specifically 
authorizes the National Museum of the American Indian and the 
Smithsonian's other museums to continue to exceed the statutory 
requirements of NAGPRA and the NMAI Act with respect to 
repatriation activities.
    We welcome the Committee's interest in the Smithsonian's 
repatriation activities and we look forward to continuing 
success in our efforts to carry out the important purposes of 
the National Museum of the American Indian Act.
    The Smithsonian supports Senate passage of S. 1970, as 
ordered reported.
    The Office of Management and Budget advises that there is 
no objection to this report from the standpoint of the 
Administration's program.
    The Administration advises that it has no objection to the 
submission of this report.
            Sincerely,
                                              ------ ------
                                (For I. Michael Heyman, Secretary).

                        Changes in Existing Law

    In compliance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee states that the 
enactment of S. 1970 will result in the following changes in 20 
U.S.C. Sec. 80q, et seq., with existing language which is to be 
deleted in black brackets and the new language to be added in 
italic:
          * * * * * * *

                         20 U.S.C. 80q-3(f)(1)

    (1) Membership.
    Upon the expiration of the terms under subsection (e) of 
this section, the Board of Trustees shall consist of--
          (A) the Secretary of the Smithsonian Institution;
          (B) [an Assistant Secretary] a senior official of the 
        Smithsonian Institution appointed by the Board of 
        Regents; and
          (C) 23 individuals appointed by the Board of Regents 
        from a list of nominees recommended by the Board of 
        Trustees.
          * * * * * * *

                            20 U.S.C. 80q-9

    80q-9. Inventory, identification, and return of Indian 
human remains and Indian funerary objects in the possession of 
the Smithsonian Institution.
    (a) Inventory and Identification.
          (1) The Secretary of the Smithsonian Institution, in 
        consultation and cooperation with traditional Indian 
        religious leaders and government officials of Indian 
        tribes, shall--
                  [(1)] (A) inventory the Indian human remains 
                and Indian funerary objects in the possession 
                or control of the Smithsonian Institution; and
                  [(2)] (B) using the best available scientific 
                and historical documentation, identify the 
                origins of such remains and objects.
    (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).
    (b) Notice in case of identification of tribal origin.
    If the tribal origin of any Indian human remains or Indian 
funerary object is identified by a preponderance of the 
evidence, the Secretary shall so notify any affected Indian 
tribe at the earliest opportunity.
    (c) Return of Indian human remains and associated Indian 
funerary objects.
    If any Indian human remains are identified by a 
preponderance of the evidence as those of a particular 
individual or as those of an individual culturally affiliated 
with a particular Indian tribe, the Secretary, upon the request 
of the descendants of such individual or of the Indian tribe 
shall expeditiously return such remains (together with any 
associated funerary objects) to the descendants or the tribe, 
as the case may be.
    (d) Return of Indian funerary objects not associated with 
Indian human remains.
    If any Indian funerary object not associated with Indian 
human remains is identified 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, the Secretary, upon the request of the Indian tribe, 
shall expeditiously return such object to the tribe.
    (e) Interpretation.
    Nothing in this section shall be interpreted as--
         (1) limiting the authority of the Smithsonian 
        Institution to return or repatriate Indian human 
        remains or Indian funerary objects to Indian tribes or 
        individuals; or
          (2) delaying actions on pending repatriation 
        requests, denying or otherwise affecting access to the 
        courts, or limiting any procedural or substantive 
        rights which may otherwise be secured to Indian tribes 
        or individuals.
    (f) Authorization of appropriations.
    There is authorized to be appropriated $1,000,000 for 
fiscal year 1991 and such sums as may be necessary for 
succeeding fiscal years [to carry out this section] to carry 
out this section and section 11A.
    80q-9a 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 unassociated funerary objects, sacred objects, or objects of 
cultural patrimony in a manner that exceeds the requirements of 
this Act.
    (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)).
          * * * * * * *

                            20 U.S.C. 80q-10

    80q-10 Special committee to review the inventory, 
identification, and return of Indian human remains and Indian 
funerary objects.
    (a) Establishment duties.
    Not later than 120 days after November 28, 1989, the 
Secretary of the Smithsonian shall appoint a special committee 
to monitor and review the inventory, identification, and return 
of Indian human remains, and funerary objects under section 11 
of this title and unassociated funerary objects, sacred 
objects, and objects of cultural patrimony under section 11A. 
In carrying out its duties, the committee shall--
          (1) with respect to the inventory and identification, 
        ensure that fair and objective consideration and 
        assessment of all relevant evidence;
          (2) upon the request of any affected party or 
        otherwise, review any finding relating to the origin or 
        the return of such remains or objects;
          (3) facilitate the resolution of any dispute that may 
        arise between Indian tribes with respect to the return 
        of such remains or objects; and
          (4) perform such other related functions as the 
        Secretary may assign.
    (b) Membership.
    The committee shall consist of [five] 7 members, of whom--
          (1) [three] 4 members shall be appointed from among 
        nominations submitted by Indian tribes and 
        organizations; [and]
          (2) at least 2 members shall be traditional Indian 
        religious leaders; and
          [(2)] (3) the Secretary shall designate one member as 
        chairman.