[Senate Report 104-356]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 570
104th Congress                                                   Report
                                 SENATE

 2d Session                                                     104-356
_______________________________________________________________________


 
 TO AMEND THE NATIVE GRAVES PROTECTION AND REPATRIATION ACT TO INCLUDE 
          NATIVE HAWAIIAN ORGANIZATIONS AND FOR OTHER PURPOSES

                                _______
                                

                August 27, 1996.--Ordered to be printed

   Filed under authority of the order of the Senate of August 2, 1996

_______________________________________________________________________


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

                              R E P O R T

                         [To accompany S. 1983]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 1983) to amend the Native American Graves Protection 
and Repatriation Act to include Native Hawaiian organizations, 
and for other purposes, having considered the same, reports 
favorably thereon without amendment and recommends that the 
bill do pass.

                                Purpose

    The purpose of S. 1983 is to amend Public Law 101-601, the 
Native American Graves Protection and Repatriation Act, in 
order to clarify certain provisions as they pertain to Native 
Hawaiian organizations.

                               Background

    S. 1983 was introduced by Senator Inouye on July 22, 1996, 
for himself and Senators McCain and Akaka. S. 1983 amends the 
Native American Graves Protection and Repatriation Act (25 
U.S.C. 3001 et seq.) by clarifying three provisions which 
pertain to Native Hawaiians and Native Hawaiian organizations.
    In 1990, the Congress enacted the Native American Graves 
Protection and Repatriation Act (NAGPRA) to address the growing 
concern among Indian tribes, Alaska Native villages, and Native 
Hawaiian organizations regarding the disposition of thousands 
of Native American human remains and religious objects in the 
possession of federally-funded museums and Federal agencies. 
NAGPRA requires museums, scientific institutions that receive 
federal funds, and Federal agencies possessing such cultural 
items to compile inventories and written summaries of Native 
American human remains, associated and unassociated funerary 
objects, sacred objects, and objects of cultural patrimony. 
NAGPRA further establishes a process governing the repatriation 
of such items to the appropriate Indian tribes or Native 
Hawaiian organizations.
    Since NAGPRA's enactment, the focus has largely been on the 
completion of summaries and inventories by museums and Federal 
agencies of Native American cultural items in their possession 
and control, and the repatriation of such items. Eight hundred 
and forty-seven museums and Federal agencies have provided 
summaries of their collections to Indian tribes and Native 
Hawaiian organizations. In addition, museums and Federal 
agencies have published sixty-six statutorily-required Federal 
Register notices relating to the repatriation of 2,713 human 
remains, 122,948 funerary objects, 212 sacred objects, and 16 
objects of cultural patrimony.
    In many respects, Native Hawaiian organizations have been 
at the forefront of efforts to secure the repatriation of 
ancestral remains. Hawaiian cultural values require the care 
and protection of ancestral remains and burial sites. The 
disturbance and removal of Native Hawaiian ancestral remains 
from Hawaii continues to be considered one of the highest of 
offenses. Since the enactment of NAGPRA, hundreds of Native 
Hawaiian remains have been returned to Hawai'i from over twenty 
museums in the United States, Canada, Switzerland, and 
Australia.
    Unfortunately, Native Hawaiians have also been among the 
first native peoples to encounter difficulties and limitations 
in the Act's implementation, particularly in the context of 
inadvertent discoveries of Native American human remains. 
Hawaii's finite and limited land resources, the high level of 
development activity on these lands, and naturally occurring 
erosion, have contributed to the frequent discovery of Native 
Hawaiian human remains. In addition, many of the federal land 
holdings in Hawai'i, such as military bases and national parks, 
are located on sandy shorelines that were commonly used by 
early Hawaiians as burial sites. As a result of these 
circumstances, Native Hawaiian organizations have experienced 
the difficulty of implementing NAGPRA's provisions regarding 
the inadvertent discovery of Native Hawaiian human remains on 
Federal lands.
    On December 6, 1995, the Committee on Indian Affairs held 
an oversight hearing on NAGPRA. Written testimony was received 
from Hui Malama I Na Kupuna `O Hawai'i Nei, a Native Hawaiian 
organization recognized under NAGPRA, raising a number of 
concerns regarding the Act's implementation in the State of 
Hawai'i. An addendum to this testimony was subsequently 
received by the Committee in April of 1996. The changes to 
NAGPRA proposed in this bill are designed to address these 
concerns, namely: the lack of written consent where Native 
American human remains are excavated or removed for purposes of 
study; the lack of notification to Native Hawaiian 
organizations when inadvertent discoveries of Native American 
human remains are made on Federal lands; and following an 
inadvertent discovery of Native American human remains, the 
lack of assurances that the removal of such remains will adhere 
to the same requirements as an intentional excavation.

                          Legislative History

    S. 1983 was introduced by Senator Inouye, for himself and 
Senators McCain and Akaka, on July 23, 1996, and was referred 
to the Committee on Indian Affairs.

            Committee Recommendation and Tabulation of Vote

    In an open business session on July 30, 1996, the Committee 
on Indian Affairs ordered the bill reported, with the 
recommendation that the Senate pass the bill, as reported.

                      Section-by-Section Analysis

Sec. 1(a). Written consent required if Native American remains are 
        excavated or removed for purposes of study

    Section 1(a) amends section 3(c) of NAGPRA by adding a new 
subsection to address the issue of written consent, where 
Native American remains are excavated or removed for purposes 
of study Subsection (c) of NAGPRA currently provides that the 
intentional removal or excavation of Native American cultural 
items from Federal or tribal lands for purposes of discovery, 
study, or removal is permitted only if an Archaeological 
Resources Protection Act permit is obtained, if proof of 
consultation, or in the case of tribal lands, of consent, is 
obtained from the appropriate tribe or Native Hawaiian 
organization, and if the ownership of such items has been 
determined. Section 1(a) of this bill would add an additional 
requirement in instances where Native American human remains 
are intentionally excavated or removed for purposes of study by 
requiring written consent from lineal descendants, if known or 
readily ascertainable, or each appropriate Indian tribe or 
Native Hawaiian organization.
    The Committee recognizes the importance of consulting with 
lineal descendants and the appropriate Indian tribes or Native 
Hawaiian organizations where Native American human remains are 
intentionally excavated or removed for purposes of study. The 
Committee notes that, according to Native Hawaiian traditions, 
the care and protection of ancestral remains and burial sites 
are, first and foremost, a family matter. As such, the 
interests of lineal descendants in the disposition of the 
remains of their ancestors should take precedence over those of 
any Native Hawaiian organization.
    The Committee has also been apprised that some of the 
activities conducted during the course of a study or physical 
examination of human remains, such as the taking of 
photographs, or the taking of bone samples for purposes of 
radio-carbon dating, are considered by some as so egregious or 
offensive that they constitute desecration. Therefore, in 
instances where the remains are intentionally removed for 
purposes of study, the Committee intends that written consent 
first be obtained, from lineal descendants, if known or readily 
ascertainable, and the appropriate Indian tribe or Native 
Hawaiian organization. The Committee expects that the 
individual or entity proposing to remove the remains will 
exercise good faith efforts in ascertaining the lineal 
descendants.

Sec. 1(b). Requirements for inadvertent discoveries

    Section 1(b) of the bill pertains to requirements for 
inadvertent discoveries. Subsection 1(b)(1) amends section 
3(d)(1) of NAGPRA to clarify that notification to the 
appropriate Native Hawaiian organizations is required when 
Native American human remains are inadvertently discovered on 
Federal lands. As currently worded, section 3(d)(1) does not 
require notification, written or otherwise, to Native Hawaiian 
organizations when Native Hawaiian remains are inadvertently 
discovered on Federal lands. Such notice is only required when 
the discovery occurs on Hawaiian homelands. This is clearly not 
consistent with the Congressional intent of this section, as 
evidenced by the following text from the House Committee 
report: ``Subsection (d) provides that anyone who discovers any 
item covered by this Act accidentally, or by an otherwise 
unrelated activity, on Federal or tribal land shall notify the 
head of the Federal entity having primary jurisdiction over the 
land in question and any appropriate tribe or Native Hawaiian 
organization if known or easily ascertainable.'' (H. Rept. 101-
877, pg. 17) (italics added). Subsection 1(b)(1) of the bill 
would make clear that notification must be made, not only to 
the head of the appropriate Federal entity, but also to the 
appropriate Indian tribe or Native Hawaiian organization.
    The Committee notes that this proposed notification 
requirement is also consistent with the NAGPRA regulations, 
promulgated by the Department of the Interior, which became 
effective on January 3, 1996. Following an inadvertent 
discovery on Federal lands, 43 CFR Part 10, Subpart B, Section 
10.4(d)(1)(iii) requires that the responsible Federal agency 
official notify by telephone, with written confirmation, the 
appropriate Indian tribes or Native Hawaiian organizations, no 
later than three days after the notification of the discovery.
    Subsection 1(b)(2) of the bill clarifies subsections 3 (c) 
and (d) of NAGPRA by ensuring that the requirements of 
subsection 3(c) regarding the intentional excavation and 
removal of Native American human remains and objects are 
applied in such instances where the intentional excavation or 
removal follows an inadvertent discovery. In at least one 
instance in Hawai'i, a Federal agency interpreted NAGPRA as not 
requiring compliance with section 3(c), which requires the 
issuance of a permit pursuant to the Archaeological Resources 
Protection Act of 1979, even though the Native American human 
remains were intentionally excavated for purposes of removal, 
on the basis that such remains were inadvertently discovered. 
Subsection 1(b)(2) would amend section 3(d)(2) of NAGPRA by 
adding a clarifying sentence which provides that: ``Any person 
or entity that disposes of or controls any such cultural item 
shall adhere to the applicable requirements of subsection 
(c).''
    The Committee notes that subsection 1(b)(2) of the bill is 
consistent with the applicable NAGPRA regulation, which 
mandates compliance with the requirements and procedures 
relating to intentional archaeological excavations when human 
remains, funerary objects, sacred objects or objects of 
cultural patrimony are removed following an inadvertent 
discovery on Federal lands. (43 CFR Part 10, Subpart B, Section 
10.4).
    The Committee believes that the amendments proposed in S. 
1983 are consistent with the original purpose, spirit, and 
intent of NAGPRA, and are necessary in order to strengthen and 
clarify the existing law. While the amendments are designed to 
address concerns specifically raised by Native Hawaiian 
organizations as to the implementation of NAGPRA in the State 
of Hawai'i, the Committee recognizes that changes proposed by 
these Amendments will also benefit Indian tribes.

                   Cost and Budgetary Considerations

    The cost estimate for S.1983, as calculated by the 
Congressional Budget Office, is set forth below:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, August 6, 1996.
Hon. John McCain,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed S. 1983, a bill to amend the Native American Graves 
Protection and Repatriation Act to provide for Native Hawaiian 
organizations, and for other purposes, as ordered reported by 
the Senate Committee on Indian Affairs on July 30, 1996. CBO 
estimates that enacting this legislation would have no effect 
on the federal budget. Because enacting S. 1983 would not 
affect direct spending or receipts, pay-as-you-go procedures 
would not apply.
    S. 1983 would clarify the intent of the Native American 
Graves Protection and Repatriation Act by requiring written 
consent from lineal descendants or from the appropriate Indian 
tribe or Native Hawaiian organization if Native American 
remains are intentionally excavated or removed for purposes of 
study. Further, the bill would require notification to the 
appropriate Indian tribe or Native Hawaiian organization if 
Native American human remains are inadvertently discovered on 
federal lands, or if Native American human remains and objects 
are removed following an inadvertent discovery.
    S. 1983 contains intergovernmental and private-sector 
mandates as defined in the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4), because it would impose additional 
requirements on any state or local governments or private-
sector entities that fund projects that result in the discovery 
of Native American remains. CBO estimates that these mandates 
would impose no significant costs on state, local, or tribal 
governments, or on the private sector.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Rachel 
Robertson (for federal costs); Marjorie Miller (for the impact 
on state, local, and tribal governments); and Amy Downs (for 
the private-sector impact).
            Sincerely,
                                         June E. O'Neill, Director.

                      Regulatory Impact Statement

    Paragraph 11(b) of rule XXXVI 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. 1983 will 
have only de minimis regulatory or paperwork impacts.

                        Executive Communications

    The Committee has not received any executive communications 
from the Administration on S. 1983.

                        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. 1983 will result in the following changes in 25 
U.S.C. 3001 et seq., with existing language which is to be 
deleted in black brackets and the new language to be added in 
italic:

           NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION

                         25 U.S.C. Section 3002

SEC. 3002. OWNERSHIP.

          * * * * * * *
    (c) Intentional Excavation and Removal of Native American 
Human Remains and Objects.--
          * * * * * * *
          (3) the ownership and right of control of the 
        disposition of such items shall be as provided in 
        subsections (a) and (b) of this sections; [and]
          (4) proof of consultation or consent under paragraph 
        (2) is shown[.] and
          (5) in the case of any intentional excavation or 
        removal of Native American human remains for purposes 
        of study, such remains are excavated or removed after 
        written consent is obtained from--
                  (A) lineal descendants, if known or readily 
                ascertainable; or
                  (B) each appropriate Indian tribe or Native 
                Hawaiian organization.
    (d) Inadvertent Discovery of Native American Remains and 
Objects.--(1) Any person who knows, or has reason to know, that 
such person has discovered Native American cultural items on 
Federal or tribal lands after the date of enactment of this Act 
shall notify, in writing, the Secretary of the Department, or 
head of any other agency or instrumentality of the United 
States, having primary management authority with respect to 
Federal lands and the appropriate Indian tribe or Native 
Hawaiian organization [with respect to tribal lands, if known 
or readily ascertainable]. With resp1ect to tribal lands, such 
notification shall be provided to each appropriate Indian tribe 
or Native Hawaiian organization, and, in the case of lands that 
have been selected by an Alaska Native Corporation or group 
organized pursuant to the Alaska Native Claims Settlement Act 
of 1971 (43 U.S.C.A. sec. 1601 et seq.), the appropriate 
corporation or group * * *
    (2) The disposition of and control over any cultural items 
excavated or removed under this subsection shall be determined 
as provided for in this section. Any person or entity that 
disposes of or controls any such cultural item shall adhere to 
the applicable requirements of subsection (c).