[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.