[Senate Hearing 117-339]
[From the U.S. Government Publishing Office]
S. Hrg. 117-339
THE LONG JOURNEY HOME: ADVANCING THE
NATIVE AMERICAN GRAVES PROTECTION AND
REPATRIATION ACT'S PROMISE AFTER 30
YEARS OF PRACTICE
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HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
__________
FEBRUARY 2, 2022
__________
Printed for the use of the Committee on Indian Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
__________
U.S. GOVERNMENT PUBLISHING OFFICE
48-310 PDF WASHINGTON : 2022
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COMMITTEE ON INDIAN AFFAIRS
BRIAN SCHATZ, Hawaii, Chairman
LISA MURKOWSKI, Alaska, Vice Chairman
MARIA CANTWELL, Washington JOHN HOEVEN, North Dakota
JON TESTER, Montana JAMES LANKFORD, Oklahoma
CATHERINE CORTEZ MASTO, Nevada STEVE DAINES, Montana
TINA SMITH, Minnesota MIKE ROUNDS, South Dakota
BEN RAY LUJAN, New Mexico JERRY MORAN, Kansas
Jennifer Romero, Majority Staff Director and Chief Counsel
K. Williams, Minority Staff Director and General Counsel
C O N T E N T S
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Page
Hearing held on February 2, 2022................................. 1
Statement of Senator Cantwell.................................... 34
Statement of Senator Cortez Masto................................ 33
Statement of Senator Murkowski................................... 2
Statement of Senator Schatz...................................... 1
Witnesses
Beasley, Joy, Associate Director, Cultural Resources,
Partnerships, and Science, National Park Service, U.S.
Department of the Interior..................................... 4
Prepared statement........................................... 5
Grussing, Valerie, Ph.D., Executive Director, National
Association of Tribal Historic Preservation Officers........... 21
Prepared statement........................................... 22
Lindsey, Carmen ``Hulu'', Chair, Office of Hawaiian Affairs...... 15
Prepared statement........................................... 16
Ortiz, Dr. Anna Maria, Director, Natural Resources and
Environment, U.S. Government Accountability Office............. 7
Prepared statement........................................... 8
Worl, Rosita, Ph.D., President, Sealaska Heritage Institute...... 27
Prepared statement........................................... 29
Appendix
Association on American Indian Affairs, prepared statement....... 45
Chavarria, Hon. J. Michael, Governor, Santa Clara Pueblo,
prepared statement............................................. 52
Dawley, Martina, Tribal Historic Preservation Officer, Hualapai
Tribe, prepared statement...................................... 60
Friend, Hon. Billy, Chief, Wyandotte Nation, prepared statement.. 58
Mitchell, Mark, Chairman, All Pueblo Council of Governors,
prepared statement............................................. 43
Pasqual, Theresa, Tribal Historic Preservation Officer, Pueblo of
Acoma, prepared statement...................................... 43
Response to written questions submitted by Hon. John Hoeven to
Joy Beasley.................................................... 79
Response to written questions submitted by Hon. Ben Ray Lujan to:
Joy Beasley.................................................. 83
Valerie Grussing, Ph.D....................................... 72
Dr. Anna Maria Ortiz......................................... 67
Rosita Worl, Ph.D............................................ 76
Response to written questions submitted by Hon. Brian Schatz to:
Joy Beasley.................................................. 80
Valerie Grussing, Ph.D....................................... 70
Carmen Hulu Lindsey.......................................... 62
Dr. Anna Maria Ortiz......................................... 66
Salt River Pima-Maricopa Indian Community, prepared statement.... 54
Society for American Archaeology, prepared statement............. 49
THE LONG JOURNEY HOME: ADVANCING THE NATIVE AMERICAN GRAVES PROTECTION
AND REPATRIATION ACT'S PROMISE AFTER 30 YEARS OF PRACTICE
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WEDNESDAY, FEBRUARY 2, 2022
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:30 p.m. in room
628, Dirksen Senate Office Building, Hon. Brian Schatz,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. BRIAN SCHATZ,
U.S. SENATOR FROM HAWAII
The Chairman. Good afternoon. Welcome to the committee's
oversight hearing entitled The Long Journey Home: Advancing the
Native American Graves Protection and Repatriation Act Promise
After 30 Years of Practice.
We are at a critical moment of reckoning with this
Country's shameful past Federal policies that have failed
Native peoples. As the committee well knows, there are numerous
examples of these failures. The mistreatment and unjust removal
of Native American ancestral remains from their resting places
is just one of them.
For decades, the Native American Graves Protection and
Repatriation Act of 1990 or NAGPRA has helped to heal the pain
felt by generations through return and repatriation of these
remains to their Native communities. NAGPRA's promise of
ancestral homecoming has taken on a deeper meaning recently
after the grim discovery of mass graves of Native children at
government-run boarding schools in Canada, reopening old wounds
and forcing the U.S. to face its own troubled legacy of Native
boarding schools.
As the Department of the Interior undertakes its Federal
Indian boarding school initiative to examine this legacy, it is
my hope that as a Nation we are truly on the path toward
reconciliation and healing. Repatriating ancestral remains and
cultural items is difficult and often painful work. Recognizing
the significance of this work to Native communities, I would
like to turn the floor over to Napua Greig, to provide us with
an opening to help us set the tone for this important
discussion.
Ms. Greig?
Ms. Greig. [Greeting in Native tongue.] I send you warmest
regards from Hawaii, and more specifically the island of Maui.
Our iwi, our bones are sacred, because in those iwi are the
mana, the energy, the power, the very essence of a person long
after their passing. And here on Maui lies the final resting
place of perhaps the highest-ranking line of chiefs, the
[phrase in Native tongue] line. Today, I present to you a
mookuauhau, a genealogy of the [phrase in Native tongue] line
of chiefs, which begins at [phrase in Native tongue], the
sacred burial cave here at Iao.
[Traditional Opening in Native language.]
The Chairman. Thank you so much, Napua.
NAGPRA became law on November 16th, 1990. For the first
time, there was a process for Native communities to return
their ancestral remains and cultural items back to their
homelands from the shelves of museums and other repositories.
But when Congress was contemplating NAGPRA, the
Congressional Budget Office estimated that it would take 10
years to complete this work. Now, more than 30 years later,
over 200,000 ancestral remains and approximately 2.5 million
associated funerary items have been identified. But only about
42 percent of ancestral remains and 70 percent of cultural
remains have been repatriated.
So while progress is certainly being made, the journey
continues for tens of thousands of ancestors and millions of
cultural items to find their way home. The promise of NAGPRA
continues.
Before I turn to Vice Chair Murkowski, I would like to
extend my sincere welcome and aloha to Chair Hulu Lindsey of
the Office of Hawaiian Affairs, and to our entire panel of
witnesses today. I look forward to your testimony and our
discussion.
Vice Chair Murkowski?
STATEMENT OF HON. LISA MURKOWSKI,
U.S. SENATOR FROM ALASKA
Senator Murkowski. Chairman Schatz, gunalcheesh. We
appreciate your holding this very, very important oversight
hearing today.
As you mentioned, it was back in 1990 that Congress passed
NAGPRA to establish a legal framework for the identification
and the repatriation of human remains, funerary objects, sacred
objects, and objects of cultural patrimony of Indian tribes and
Native Hawaiian organizations.
As the Association of American Indian Affairs states in a
letter to Interior, they say ``With NAGPRA, Congress announced
that continued possession of the deceased bodies of our
ancestors and their burial belongings, sacred objects, and
objects of cultural patrimony was legally and morally
unsupportable.'' NAGPRA recognizes that human remains of any
ancestry must at all times be treated with dignity and with
respect.
It is time, it is past time, that this Committee exercises
its oversight role to ensure that the tools Congress has given
Federal agencies under the law are being used to safeguard
tribal communities from being locked out of decisions involving
their own people, their sacred sites.
You have referenced the connection with the very deeply
troubling reports of children's remains that are being
identified at former Native American boarding school sites.
While the protections afforded in NAGPRA may not be applicable
in every instance, I do hope that this committee can have a
discussion on how NAGPRA's already existing Federal framework
may be one of the many Federal tools that we can choose to
apply in order to correct a harmful period in Federal Indian
policy.
In Alaska, NAGPRA has played an important role in helping
to repatriate human remains and funerary objects. Since
NAGPRA's enactment, tribal communities and institutions in
Alaska have been awarded over $6.9 million in Federal funds.
These funds helped facilitate 155 consultation, documentation,
and repatriation projects. The real-life impact of this Federal
investment means that from 70 museums and Federal agencies
located across the Country, 1,843 Native American individuals
were repatriated and returned home to their Alaska Native
communities.
But there is much more to be done. The work is not
finished. There are still 406 Alaska Native individuals who
remain housed in 26 museums or Federal agencies pending
consultation and notification prior to repatriation. So I would
hope to hear today from our Federal witnesses about the status
of those pending repatriations.
And we absolutely need to be doing better across the
Country. According to the Interior Department's own statistics,
only 21 percent of museums subject to NAGPRA have repatriated
all of the Native American human remains under their control.
So I am looking forward to hearing about the
Administration's objectives for any proposed changes to
NAGPRA's implementing regulations and how this Committee can
help ensure the success of this very important program. As part
of any updates to the law, I expect the Administration to
consider the unique structure associated with Alaska's tribal
communities.
I want to welcome all of our panelists today, but
particularly my friend, Dr. Rosita Worl, President of Sealaska
Heritage Institute. Dr. Worl is a highly respected and
accomplished academic, researcher, and topologist, author, as
they say, she does it all. She received her Ph.D. and her MS in
anthropology from Harvard University. She has a BA from Alaska
Methodist University. She also holds an honorary Doctor of
Science from the University of Alaska Anchorage. She has served
on the NAGPRA review committee for 13 years now, from 2000 to
2013, including a term as chair of the review committee.
So she is deeply, deeply steeped in this, as she is on so
many issues, most notably the preservation of Native languages,
and seeks to encourage me daily in reminding me of my
responsibility to help share with the preservation of those
languages.
As Aanshawatk'i to you, Dr. Worl, know that I give you my
sincere appreciation, and thank you. Thank you for being here.
The Chairman. Thank you, Vice Chair Murkowski.
It gives me pleasure to introduce the remaining witnesses.
First, we will have Joy Beasley, the Associate Director of
Cultural Resources, Partnerships, and Science at the National
Park Service. Then Dr. Anna Maria Ortiz, Director of Natural
Resources and Environment, USGAO. Then Carmen Hulu Lindsey,
Chair of the Office of Hawaiian Affairs. And Dr. Valerie
Grussing, Executive Director of the National Tribal Historic
Preservation Officers Association.
Ms. Beasley, please proceed with your testimony.
STATEMENT OF JOY BEASLEY, ASSOCIATE DIRECTOR,
CULTURAL RESOURCES, PARTNERSHIPS, AND SCIENCE,
NATIONAL PARK SERVICE, U.S. DEPARTMENT OF THE
INTERIOR
Ms. Beasley. Chairman Schatz, Ranking Member Murkowski and
members of the Committee, my name is Joy Beasley, and I am the
Associate Director for Cultural Resources, Partnerships, and
Science for the National Park Service.
Before I offer my oral statement, I just want to very
quickly wish Senator Lujan a swift recovery.
Thank you for the opportunity to appear before you today to
present the Department of the Interior's views on
implementation of the Native American Graves Protection and
Repatriation Act of 1990, known as NAGPRA. NAGPRA recognized
that human remains of any ancestry must at all times be treated
with dignity and respect. For over 30 years, NAGPRA has
required the respectful return of Native American ancestors and
cultural items to lineal descendants, Indian tribes and Native
Hawaiian organizations.
Implementation of NAGPRA is assigned to the Secretary of
the Interior. Since 1990, the national NAGPRA program has been
based in the National Park Service. The Secretary of the
Interior has delegated NAGPRA responsibilities to the National
Park Service, including publishing notices in the Federal
Register, administering grants to tribes and museums, receiving
and recording inventory and summaries, and investigating
failures to comply.
Since 1990, the National Park Service has published almost
4,000 notices allowing for the repatriation of over 84,000
Native American ancestral remains and over 1.5 million funerary
objects. Since 1994, we have awarded nearly $54 million in
grant funds to museums, Indian tribes, and Native Hawaiian
organizations for consultation and repatriation. We have
undertaken investigations that have resulted in many thousands
of dollars in penalties.
We also provide technical assistance to Indian tribes,
Native Hawaiian organizations, museums and Federal agencies
involved in repatriation or disposition. We provide direct
training to over 2,000 participants annually, and we respond to
thousands of individual inquiries by phone or email.
The national NAGPRA program manager also serves as the
designated Federal official for the NAGPRA review committee, a
Federal advisory committee. The committee provides an annual
report to Congress outlining progress made and any barriers
encountered in implementing NAGPRA.
The most recent report for 2020 and 2021 was finalized by
the advisory committee at the end of November. The Department
is preparing it for transmittal to Congress.
While there have been many successes in implementing
NAGPRA, the Department is aware that more work needs to be
done. Since the passage of NAGPRA in 1990, less than half of
the Native American ancestral remains in collections have been
repatriated to their traditional caretakers. Over 117,000
Native American individuals are still in museum and Federal
agency collections, and 94 percent of those have not been
culturally affiliated with any present-day Indian tribe or
Native Hawaiian organization.
Even in Alaska and Hawaii, where connections between
ancestral remains and present-day people are well established,
over 400 ancestors taken from Alaska and over 100 iwi kupuna
taken from Hawaii are still in museum collections.
The Department is also aware that some collections subject
to NAGPRA remain unreported. Many Federal agencies are still
trying to locate extensive collections in non-Federal
repositories and museums are continuing to discover unknown or
unreported collections that are subject to NAGPRA that should
be returned to their traditional caretakers
The Department is also aware that substantive updates to
the NAGPRA regulations are long overdue. We recently prepared a
draft proposed rule and invited consultation with Indian tribe
and Native Hawaiian organizations to discuss the proposal. The
goal of the revisions is to simplify and improve the regulatory
process for repatriation by streamlining existing regulatory
requirements, shifting excessively burdensome and complicated
procedures, and clarifying timelines.
The Department is currently working on incorporating the
input we received during consultation, and expects to publish a
proposed rule for public comment in early 2022. In the revised
regulations, the Department is committed to emphasizing
deference to Native American customs, traditions, and
traditional knowledge wherever possible throughout the
repatriation process.
Chairman Schatz, Ranking Member Murkowski, and members of
the committee, thank you for the opportunity to present the
Department's views in NAGPRA implementation. I would be pleased
to answer any questions you have.
[The prepared statement of Ms. Beasley follows:]
Prepared Statement of Joy Beasley, Associate Director, Cultural
Resources, Partnerships, and Science, National Park Service, U.S.
Department of the Interior
Chairman Schatz, Ranking Member Murkowski, and members of the
Committee, my name is Joy Beasley and I serve as the Associate Director
for Cultural Resources, Partnerships and Science in the National Park
Service at the United States Department of the Interior (Department).
Thank you for the opportunity to appear before you today to present the
Department's views on the implementation of the Native American Graves
Protection and Repatriation Act of 1990 (NAGPRA). For over 30 years,
NAGPRA has required the respectful return of Native American ancestors
and cultural items to lineal descendants, Indian Tribes, and Native
Hawaiian organizations. Under NAGPRA, ancestral remains and cultural
items are subject to repatriation by a museum or Federal agency or
protection on Federal or Tribal land. NAGPRA recognized that human
remains of any ancestry must at all times be treated with dignity and
respect. NAGPRA provides for the resolution of rights to long-separated
ancestors and objects to Indian Tribes and Native Hawaiian
organizations.
Implementation of NAGPRA is assigned to the Secretary of the
Interior. Since 1990, the National NAGPRA Program has been based in the
National Park Service. The Secretary of the Interior has delegated the
following eight responsibilities to the Director of the National Park
Service, who in turn delegated them to the Associate Director for
Cultural Resources Partnerships and Science:
Publish notices in the Federal Register for museums and
Federal agencies to provide due process to Indian Tribes and
Native Hawaiian organizations. We have published almost 4,000
notices, allowing for the repatriation of over 84,000 Native
American ancestral remains and over 1.5 million funerary
objects.
Maintain and share data on NAGPRA compliance. We maintain
publicly available databases to ensure transparency of
information related to repatriation and disposition. Data is
provided in more user-friendly reports and data visualizations
to assist Indian Tribes and Native Hawaiian organizations in
making requests.
Make Federal grant awards to museums, Indian Tribes, and
Native Hawaiian organizations for consultation and repatriation
under NAGPRA. The Department acknowledges and appreciates the
recent work of the Congress to increase grant funds to museums,
Indian Tribes, and Native Hawaiian organizations. Since 1994,
nearly $54 million in grant funds have been awarded. However,
we continue to receive more applications that meet the funding
criteria than we can support in in a given fiscal year.
Investigate civil penalty allegations and assess fines on
museums that fail to comply with NAGPRA provisions. In total,
we have investigated 53 entities and found 20 museums have
failed to comply with NAGPRA. We have collected nearly $60,000
in penalties. The National Park Service recently hired a full-
time investigator for the Program dedicated to conducting these
investigations.
Provide staff support to the Native American Graves
Protection and Repatriation Review Committee, a Federal
Advisory Committee. The Committee provides an annual report to
Congress outlining progress made and any barriers that may have
been encountered in implementing NAGPRA. The most recent
report, covering 2020-2021, was finalized by the Advisory
Committee at the end of November of 2021. The Department is
preparing the report for transmittal to Congress in early 2022.
Provide technical assistance for discoveries and excavations
on Federal and Tribal lands. To date, Federal agencies have
reported 214 notices of dispositions from Federal lands.
Draft and promulgate implementing regulations. The Department
recently completed consultation with Indian Tribes and Native
Hawaiian organizations on possible revisions to the NAGPRA
regulations.
Provide technical assistance to any party involved in
repatriation or disposition. Training is provided to upwards of
2,000 participants annually, although we are reaching even
larger audiences with remote video conferencing. The National
NAGPRA Program responds to thousands of individual inquiries by
phone or email annually.
While there have been many successes in implementing NAGPRA as
mentioned in the bullets above, the Department is aware that more work
under NAGPRA needs to be done. Since the passage of NAGPRA in 1990,
less than half of the Native American ancestral remains in collections
have been repatriated to their traditional caretakers. Over 117,576
Native American individuals are still in museum and Federal agency
collections and 94 percent of those have not been culturally affiliated
with any present-day Indian Tribe or Native Hawaiian organization. Even
in Alaska and Hawai`i, where connections between ancestral remains and
present-day people are well established, over 400 ancestors taken from
Alaska and over 100 iwi kupuna taken from Hawai`i are still in museum
collections. The Department is also aware that some collections subject
to NAGPRA remain unreported. Many Federal agencies are still trying to
locate extensive collections in non-Federal repositories in order to
complete the NAGPRA compliance process. Likewise, museums are
continuing to discover collections subject to NAGPRA that were unknown
or unreported that should be returned to their traditional caretakers.
In addition, the Department is aware that changes to the NAGPRA
regulations are long overdue.
Regulations
Since 2010, the Department has received repeated requests for
substantive updates to the NAGPRA regulations. Based on community input
and previous consultations, the Department prepared a draft proposed
rule and, in July 2021, invited consultation with Indian Tribes and
Native Hawaiian organizations to discuss the proposal. The Department
held 4 consultation sessions and received 71 written comments from
Indian Tribes and Native Hawaiian organizations.
The goal of any revised regulations, as discussed during the
consultation sessions, is to simplify and improve the regulatory
process for repatriation; advance the Administration's goals; and
streamline existing regulatory requirements by simplifying excessively
burdensome and complicated requirements, and clarifying timelines. For
example, proposed revisions to the regulations could require museums
and Federal agencies to update inventories of ancestral remains and
move the regulatory process forward, without first requiring a request
from Indian Tribes or Native Hawaiian organizations.
In addition, the proposed revisions to the regulations could
require museums that have custody of a collection to report the
collection to the appropriate Federal agency or to the manager of the
National NAGPRA Program. This will allow for greater awareness and
transparency of collections that are subject to NAGPRA and its
repatriation provisions.
The Department is currently working on incorporating the input it
received during consultation with Indian Tribes and Native Hawaiian
organizations and expects to publish a proposed rule for public comment
in early 2022. The Department is committed to emphasizing in the
revised regulations deference to the customs, traditions, and Native
American traditional knowledge whenever possible in the repatriation
process.
Chairman Schatz, Ranking Member Murkowski, and members of the
Committee, thank you for the opportunity to present the Department's
views on NAGPRA implementation. I would be pleased to answer any
questions that you may have.
The Chairman. Thank you, Director Beasley.
Dr. Anna Maria Ortiz, please proceed.
STATEMENT OF DR. ANNA MARIA ORTIZ, DIRECTOR, NATURAL RESOURCES
AND ENVIRONMENT, U.S. GOVERNMENT
ACCOUNTABILITY OFFICE
Dr. Ortiz. Mr. Chairman, Senator Murkowski, and members of
the Committee, thank you for having me here today.
Before I begin, I would also like to extend GAO's wishes
for Senator Lujan's recovery.
During creation and expansion of the United States, the
Federal Government forcibly relocated countless Native
Americans from their homelands, separating them from the bodies
of their ancestors and from sacred objects central to their
cultures. Over time, as archaeologists, developers and others
unearthed objects from indigenous cultures throughout the
United States, human remains, funerary items, and other objects
sacred to American Indians, Alaska Natives and Native Hawaiians
were disturbed, destroyed, stolen, or relocated to museums or
private collections.
The Native American Graves Protection and Repatriation Act
of 1990, NAGPRA, was an important step in addressing the
hurtful and destructive impact of our Country's development. In
its broadest sense, NAGPRA aims to promote greater
understanding between Federal agencies, museums, Indian tribes,
including Alaska Native villages, and Native Hawaiian
organizations. Specifically, NAGPRA obligates museums and
agencies to identify the Native American human remains and
certain cultural resources in their holdings, and to work to
establish their cultural affiliation as the first step in the
process to help return these items to their traditional
keepers.
NAGPRA also requires that Federal agencies consult with
appropriate tribes and Native Hawaiian organizations prior to
excavating Federal or tribal lands and upon any inadvertent
discoveries. Lastly, NAGPRA criminalizes the sale, purchase,
and use for profit of any cultural items obtained knowingly in
violation of the Act.
My testimony today reviews major provisions of NAGPRA and
some of the progress that Federal agencies have made since the
GAO last reviewed its implementation in 2010. For example, as a
result of agencies' implementation of GAO's recommendations,
Congress and the public can now access national data on museum
inventories and specific items available for repatriation.
My testimony also highlights recent GAO findings on issues
central to NAGPRA's implementation. First and foremost is the
need for effective Federal consultation with tribes. Museums
and agencies that fail to consult effectively may have
difficulty establishing the tribal affiliation of sacred items
or repatriating culturally unidentifiable items to interested
tribes and Native Hawaiian organizations.
GAO also found that Federal agencies encounter challenges
in trying to protect Native American cultural resources on
Federal and tribal lands, such as resource constraints and
competing agency priorities. Further, agency progress in
implementing GAO's recommendations from recent reports may help
counter looting and trafficking of Native American cultural
resources and could help with the repatriation of more than
116,000 remains of ancestors still held in museum and agency
collections.
In the 30 years since NAGPRA's enactment, we have grown to
appreciate the challenges Federal agencies have faced in
implementing the law as well as the importance of implementing
it effectively. NAGPRA embodies the unique relationship the
United States has with Native Americans. Its consultation
requirements underscore the political sovereignty of tribal
cultures that predate our nation's. Its legal provisions to
protect Native American cultural resources are consistent with
the United States trust responsibility.
Finally, in requiring repatriation of human remains, sacred
objects, and objects of cultural patrimony to descendants and
culturally affiliated tribes and Native Hawaiian organizations,
NAGPRA seeks to redress a small portion of the many wrongs that
Federal polices have caused over time.
This concludes my oral statement. I welcome any questions
you may have.
[The prepared statement of Ms. Ortiz follows:]
Prepared Statement of Dr. Anna Maria Ortiz, Director, Natural Resources
and Environment, U.S. Government Accountability Office
Chairman Schatz, Vice Chairman Murkowski, and Members of the
Committee:
Thank you for the opportunity to discuss examples from our prior
reports regarding the Native American Graves Protection and
Repatriation Act (NAGPRA). \1\ Federal agencies and museums have
acquired Native American human remains, funerary objects, sacred
objects, and objects of cultural patrimony over hundreds of years. When
NAGPRA was enacted on November 16, 1990, it was estimated that federal
agencies and museums had tens of thousands of such items in their
historical collections.
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\1\ Pub. L. No. 101-601, 104 Stat. 3048-58 (1990) (codified as
amended at 25 U.S.C. 3001-3013); 18 U.S.C. 1170. The implementing
regulations for the act are at 43 C.F.R. pt. 10.
---------------------------------------------------------------------------
NAGPRA reflects the unique relationship between the federal
government and Indian tribes and Native Hawaiian organizations. \2\
Among other things, NAGPRA requires federal agencies and museums to
return certain Native American unassociated funerary objects, sacred
objects, or objects of cultural patrimony unless the museum or federal
agency can provide that it has a right of possession to the objects.
\3\ A Senate committee report that preceded the final version of NAGPRA
and informed the drafting of the act stated that human remains ``must
at all times be treated with dignity and respect,'' and that the
legislation would encourage a continuing dialogue between museums and
Indian tribes and Native Hawaiian organizations and will promote a
greater understanding between the groups. \4\
---------------------------------------------------------------------------
\2\ 25 U.S.C. 3010. As Congress outlined in the Indian Trust
Asset Reform Act, ``through treaties, statutes, and historical
relations with Indian tribes, the United States has undertaken a unique
trust responsibility to protect and support Indian tribes and
Indians.'' Pub. L. No. 114-178, 101(3) (2016) (codified at 25 U.S.C.
5601(3)). The act also notes that historic federal-tribal relations
and understandings have benefited the people of the United States for
centuries and established ``enduring and enforceable [f]ederal
obligations to which the national honor has been committed.'' Pub. L.
No. 114-178, 101(5) (2016) (codified at 25 U.S.C. 5601(5)).
\3\ 25 U.S.C. 3005(c). Right of possession means possession
obtained with the voluntary consent of an individual or group that had
authority of alienation. 25 U.S.C. 3001(13). The original acquisition
of a Native American unassociated funerary object, sacred object or
object of cultural patrimony from an Indian tribe or Native Hawaiian
organization with the voluntary consent of an individual or group with
authority to alienate such object is deemed to give right of possession
of that object, unless that would result in a Fifth Amendment taking by
the United States.
\4\ S. Rep. No. 101-473, at 4 (1990).
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Some federal agencies, such as the Department of the Interior's
(Interior) National Park Service, acquired their collections of Native
American cultural items through archeological excavations intended to
advance scientific knowledge and preserve cultural items. Others, such
as the U.S. Army Corps of Engineers and the Tennessee Valley Authority,
have made discoveries when pursuing construction projects that are part
of their missions. In addition, according to federal agency officials
and representatives of tribal associations that we interviewed, Native
American cultural items have a long history of being stolen from
federal and tribal lands and added to private or institutional
collections or sold for profit. This practice may involve disturbing or
destroying graves, ceremonial sites, and archeological sites that have
historical, cultural, and scientific importance.
In several previously issued reports, we found that federal
agencies could improve the implementation of NAGPRA, better protect
Native American cultural items, and take additional actions to
facilitate consultation with tribes on infrastructure projects, which
may affect tribes' cultural resources, such as sacred sites and burial
sites. \5\
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\5\ GAO, Native American Cultural Resources: Improved Information
Could Enhance Agencies' Efforts to Analyze and Respond to Risks of
Theft and Damage, GAO-21-110 (Washington, D.C.: Mar. 4, 2021); Native
American Issues: Examples of Certain Federal Requirements That Apply to
Cultural Resources and Factors That Impact Tribal Consultation, GAO-20-
466T (Washington, D.C.: Feb. 26, 2020); Tribal Consultation: Additional
Federal Actions Needed for Infrastructure Projects, GAO-19-22
(Washington, D.C.: Mar. 20, 2019); Native American Cultural Property:
Additional Agency Actions Needed to Assist Tribes with Repatriating
Items from Overseas Auctions, GAO-18-537 (Washington, D.C.: Aug. 6,
2018); and Native American Graves Protection and Repatriation Act:
After Almost 20 Years, Key Federal Agencies Still Have Not Fully
Complied with the Act, GAO-10-768 (Washington, D.C.: July 28, 2010).
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This testimony provides information on (1) federal agencies'
efforts to implement NAGPRA over the last 30 years; and (2) challenges
related to the implementation and enforcement of NAGPRA, such as those
identified in our prior reports and expressed by Indian tribes and
Native American advocacy organizations. This testimony is based on
reports that we issued from July 2010 through March 2021. These reports
examined NAGPRA and other federal laws related to protecting Native
American cultural items, as well as issues related to federal
consultation with Indian tribes. This testimony also includes
information about the consultation requirements under NAGPRA.
In conducting our previously issued work, we reviewed relevant
federal laws, regulations, and policies; reviewed agency documentation;
reviewed oral and written comments that tribes submitted to several
federal agencies regarding NAGPRA implementation; and interviewed
tribal and federal officials. More detailed information on our
objectives, scope and methodology for that work can be found in the
issued reports.
To update information on federal progress since our reports were
issued, we reviewed the status of recommendations we made and examined
federal reports with information on NAGPRA implementation. We also
reviewed comments from tribal representatives on Interior's draft
proposed revisions to NAGPRA regulations.
We conducted the work on which this statement is based in
accordance with generally accepted government auditing standards. Those
standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives.
Background
NAGPRA requires federal agencies and museums \6\ to (1) identify
the Native American human remains, funerary objects, sacred objects,
and objects of cultural patrimony in their possession; \7\ (2) try to
determine whether remains and objects or artifacts in their possession
have a cultural affiliation with a present-day Indian tribe or Native
Hawaiian organization; \8\ and (3) generally repatriate any culturally
affiliated items to the applicable Indian tribe(s) or Native Hawaiian
organization(s) under the terms and conditions prescribed in the act.
\9\ NAGPRA applies to Native American cultural items, which the law
defines as human remains, funerary objects, sacred objects, and objects
of cultural patrimony. \10\ Native American is defined as meaning of,
or relating to, a tribe, people, or culture that is indigenous to the
United States. \11\
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\6\ Museum means any institution or state or local government
agency (including institutions of higher learning) that receives
federal funds and has possession of, or control over, Native American
cultural items. Such term does not include the Smithsonian Institution
and or any other federal agency. 25 U.S.C. 3001(8).
\7\ Native American means of, or relating to, a tribe, people, or
culture that is indigenous to the United States. 25 U.S.C. 3001(9).
\8\ ''Indian tribe'' means any tribe, band, nation, or other
organized group or community of Indians, including any Alaska Native
village (as defined in, or established pursuant to, the Alaska Native
Claims Settlement Act) which is recognized as eligible for the special
programs and services provided by the United States to Indians because
of their status as Indians. 25 U.S.C. 3001(7). ``Native Hawaiian
organization'' means any organization which (1) serves and represents
the interests of Native Hawaiians, (2) has as a primary and stated
purpose the provision of services to Native Hawaiians, and (3) has
expertise in Native Hawaiian affairs, and shall include the Office of
Hawaiian Affairs and Hui Malama I Na Kupuna O Hawai'i Nei. 25 U.S.C.
3001(11).
\9\ NAGPRA requires repatriation to lineal descendants under
certain circumstances, for example when a direct lineal descendant of
an individual who owned a sacred object requests repatriation. In this
report, we refer to repatriation of culturally affiliated human remains
and objects to Indian tribes and Native Hawaiian organizations but
intend that reference to include lineal descendants when applicable.
\10\ 25 U.S.C. 3001(3). Funerary objects include associated
funerary objects and unassociated funerary objects. Associated funerary
objects are objects that, as a part of the death rite or ceremony of a
culture, are reasonably believed to have been placed with individual
human remains either at the time of death or later, and both the human
remains and associated objects are presently in the possession or
control of a federal agency or museum, except that other items
exclusively made for burial purposes or to contain human remains shall
be considered as associated funerary objects. 25 U.S.C. 3001(3)(A).
Unassociated funerary objects are objects that, as a part of the death
rite or ceremony of a culture, are reasonably believed to have been
placed with the individual human remains either at the time of death or
later, where the remains are not in the possession or control of the
federal agency or museum and the objects can be identified by a
preponderance of the evidence as related to specific individuals or
families or to known human remains or, by a preponderance of the
evidence, as having been removed from a specific burial site of an
individual culturally affiliated with a particular Indian tribe. 25
U.S.C. 3001(3)(B).
\11\ 25 U.S.C. 3001(9).
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NAGPRA and its implementing regulations contain provisions
governing Native American cultural items controlled or possessed by
federal agencies and museums, intentional excavations and inadvertent
discovery of Native American cultural items on federal \12\ or tribal
land, \13\ and a criminal prohibition. Table 1 summarizes these
provisions.
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\12\ Federal land is any land other than tribal lands which are
controlled or owned by the United States, including lands selected by
but not yet conveyed to Alaska Native Corporations and groups organized
pursuant to the Alaska Native Claims Settlement Act of 1971. 25 U.S.C.
3001(5).
\13\ Tribal land is all lands within the boundaries of any Indian
reservation; all dependent Indian communities; and any lands
administered for the benefit of Native Hawaiians pursuant to the
Hawaiian Homes Commission Act, 1920, and section 4 of Public Law 86-3.
25 U.S.C. 3001(15).
Table 1: Summary of Provisions in the Native American Graves Protection
and Repatriation Act (NAGPRA) and Its Implementing Regulations
------------------------------------------------------------------------
Type of provision Summary
------------------------------------------------------------------------
Collections NAGPRA requires federal agencies and
museums--defined as any institution or
state or local government agency that
receives federal funds--in possession of,
or control over, Native American cultural
items to identify those items; try to
determine if a cultural affiliation exists
with a present-day Indian tribe or Native
Hawaiian organization; and generally
repatriate the culturally affiliated items
to the applicable tribe or organization
under the terms and conditions specified
in the act. For human remains that federal
agencies and museums cannot culturally
affiliate, NAGPRA regulations require
museums and federal agencies to consult
with tribes or Native Hawaiian
organizations that request the return of
the remains and with federally recognized
tribe and Native Hawaiian organizations
from whose tribal or aboriginal lands the
remains were removed before offering to
transfer control of the remains.
Intentional excavation NAGPRA prohibits the intentional removal
from, or excavation of, Native American
cultural items from federal or tribal
lands unless a permit has been issued, the
appropriate Indian tribe or Native
Hawaiian organization has been consulted
with, and the tribe or organization
consents to excavation or removal of the
items from tribal land. NAGPRA regulations
establish requirements for these
consultations.
Inadvertent discovery Since its enactment, NAGPRA has required
any persons who know, or has reason to
know, that they have discovered Native
American cultural items on federal or
tribal lands to notify the federal land
management agency responsible for the land
or the appropriate Indian tribe or Native
Hawaiian organization, respectively.(a)
NAGPRA regulations establish requirements
for federal agencies to consult with
Indian tribes and Native Hawaiian
organizations regarding these discoveries.
If the discovery occurred in connection
with an ongoing activity, such as
construction, mining, or logging, the
NAGPRA regulations require the activity in
the area of the discovery to cease.
Criminal NAGPRA prohibits the sale, purchase, use
for profit, or transport for sale or
profit of (1) Native American human
remains without the right of possession(b)
as provided in the act and (2) any Native
American cultural items obtained in
violation of the act. The act and imposes
criminal penalties for knowingly violating
this prohibition.
------------------------------------------------------------------------
Source: 25 U.S.C. 3001-3013; 18 U.S.C. 1170; 43 C.F.R.
pt. 10. I GAO-22-105685
(a) For federal land selected by but not yet conveyed to Alaska
Native Corporations and groups, notification must be provided
to both the federal land management agency and the appropriate
corporation or group. 25 U.S.C. 3002(d)(1).
(b)Right of possession means possession obtained with the
voluntary consent of an individual or group that had authority
of alienation. The original acquisition of Native American
human remains and associated funerary objects which were
excavated, exhumed, or otherwise obtained with full knowledge
and consent of the next of kin or the official governing body
of the appropriate culturally affiliated Indian tribe or Native
Hawaiian organization is deemed to give right of possession to
those remains. 25 U.S.C. 3001(13).
The National NAGPRA Program, within Interior's National Park
Service, facilitates the government-wide implementation of NAGPRA. All
federal agencies with collections, federal land, or both (including the
Department of the Interior's Bureau of Indian Affairs and the
Department of Agriculture's Forest Service) are also responsible for
implementing NAGPRA. The Department of Justice is responsible for
enforcement of NAGPRA's criminal provision, and the Secretary of the
Interior has authority to assess civil penalties against a museum for
failure to comply with NAGPRA. \14\
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\14\ For example, the Department of Justice may prosecute someone
for knowingly transporting a sacred object that was obtained from
tribal lands in violation of NAGPRA and the Secretary of the Interior
may assess a penalty against a museum for failure to develop an
inventory of the human remains and associated funerary objects in its
possession or control.
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In addition, Executive Order 13175, issued in November 2000, calls
for federal agencies to have an accountable process to ensure
meaningful and timely input by tribal officials in the development of
regulatory policies that have tribal implications. \15\ To implement
Executive Order 13175, some agencies have developed agency-specific
policies and procedures for tribal consultation. \16\ More recently, in
a January 2021 Memorandum on Tribal Consultation and Strengthening
Nation-to-Nation Relationships, the President directed every executive
department and agency to develop a detailed plan of actions to
implement the policies and directives of Executive Order 13175, after
consulting with tribal nations and tribal officials. \17\ Since then,
80 agencies and offices have hosted tribal consultation sessions to
discuss their consultation policies and practices and they issued
action plans to improve these efforts, including the Office of
Management and Budget, which had not previously consulted with tribes
on its activities.
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\15\ Executive Order 13175, Consultation and Coordination with
Indian Tribal Governments, 5(a), 65 Fed. Reg. 67249, 67250 (Nov. 9,
2000). The order defines ``policies that have tribal implications'' as
``regulations, legislative comments or proposed legislation, and other
policy statements or actions that have substantial direct effects on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.''
\16\ We have not reviewed whether agencies' tribal consultation
policies apply to their efforts to implement NAGPRA.
\17\ Presidential Memorandum, Tribal Consultation and Strengthening
Nation-to-Nation Relationships, 86 Fed. Reg. 7491 (Jan. 29, 2021).
Agencies also obtained feedback from tribes on federal consultation
efforts in response to a 2009 presidential memorandum. Presidential
Memorandum on Tribal Consultation, 2009 Daily Comp. Pres. Docs. 887
(Nov. 5, 2009).
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Federal Agencies Have Made Progress Implementing NAGPRA
In July 2010, we reported on the status of NAGPRA implementation,
including federal agencies' compliance with NAGPRA's requirements for
their historical collections; actions taken by the National NAGPRA
Program to fulfill its responsibilities under the law; and federal
agencies' reporting of their repatriation of Native American human
remains and objects. \18\ At that time, we found that (1) federal
agencies had not yet fully complied with all of the requirements of
NAGPRA; (2) the National NAGPRA Program had taken several actions to
implement the act's requirements, but in some cases, had not
effectively carried out its responsibilities; and (3) the key agencies
had repatriated many NAGPRA items, but repatriation activity had
generally not been tracked or reported government-wide.
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\18\ GAO-10-768.
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That report included 14 recommendations aimed at improving NAGPRA
implementation, clarifying which entities are eligible under NAGPRA,
and providing policymakers with information to assess the overall
effectiveness of the act and to provide Indian tribes and Native
Hawaiian organizations readily accessible information on items that are
available for repatriation, all of which have been implemented. One of
these recommendations was that the agencies report their repatriation
data to the National NAGPRA Program on a regular basis, and that the
National NAGPRA Program make that information readily available to
Indian tribes and Native Hawaiian organizations, as well as publish the
information in its annual report to Congress.
As a result of the agencies' and the National NAGPRA Program's
implementation of this recommendation, annual data on the status of
federal agencies' repatriation progress are readily available. For
example, according to data from National NAGPRA Program's fiscal year
2020 report, from fiscal year 1990 through fiscal year 2020, 91.5
percent of culturally affiliated human remains have completed the
NAGPRA process and over 1.7 million associated funerary objects have
been transferred with human remains. In addition, $52 million in NAGPRA
grants have been awarded, including $1.9 million in fiscal year 2020,
which was a $250,000 increase from fiscal year 2019 grants awarded.
\19\
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\19\ NAGPRA authorizes the Secretary of the Interior to award two
types of grants: (1) grants to Indian tribes and Native Hawaiian
organizations for the purpose of assisting them in the repatriation of
Native American cultural items and (2) grants to museums for the
purpose of assisting the museums in developing inventories and
summaries of Native American cultural items in their possession or
control. 25 U.S.C. 3008.
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According to the National NAGPRA Program's fiscal year 2020 report,
however, more work is needed, particularly with respect to the human
remains of more than 116,000 Native American individuals still in
collections, of which 95 percent have not been culturally affiliated
with any present-day Indian tribe or Native Hawaiian organization. The
report notes that cultural affiliation studies and in-depth
consultations could resolve the rights to many of these individuals. In
addition, since fiscal year 1990, the program has collected $59,111 in
civil penalties for failures to comply with NAGPRA.
Challenges Remain with NAGPRA
Although there has been progress in the implementation of NAGPRA
since its enactment 30 years ago, concerns expressed by tribes and
tribal organizations and our past work indicate that several challenges
remain. These issues include challenges with consulting with tribes and
tribal organizations, better protecting cultural items, and addressing
challenges in the limited scope of the law and enforcement.
Challenges with Implementing Consultation Requirements under NAGPRA
Tribes and tribal organizations have expressed concerns about how
some federal agencies are implementing consultation requirements under
NAGPRA. In August 2021, Interior held consultation sessions with
tribes, tribal organizations, and Native Hawaiian organizations to
obtain their input on its draft proposed revisions to the NAGPRA
regulations. Interior noted in its August 2021 consultation report that
the draft proposed revised regulations are designed to, among other
things, streamline and improve its regulatory process for repatriating
cultural items to Native Americans and Native Hawaiian organizations.
Interior also noted in the consultation report that it plans to review
the comments it received.
In written comments on Interior's draft proposal, in September
2021, the Association on American Indian Affairs said a single round of
consultation is insufficient to meaningfully incorporate tribal and
Native Hawaiian organization views because the reformation needed is so
comprehensive and so different from the draft proposed revisions. In
August 2021, several tribes also provided comments to Interior on how
its draft proposed regulations could facilitate meaningful
consultations and lead to respectful repatriation. For example,
One tribal official commented that the current definition of
consultation in Interior's draft proposed regulations is
insufficient and prefers the definitions of consultation used
in the regulations to implement section 106 of the National
Historic Preservation Act because it includes seeking,
discussing, and coming to an agreement. \20\
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\20\ The regulations implementing section 106 of the National
Historic Preservation Act define consultation to mean the process of
seeking, discussing, and considering the views of other participants,
and, where feasible, seeking agreement with them regarding matters
arising in the section 106 process. 36 C.F.R. 800.16(f). Under
section 106 of the National Historic Preservation Act and its
implementing regulations, federal agencies are to take into account the
effects of their undertakings on historic properties through
consultation between agency officials, Indian tribes, and others. Pub.
L. No. 89-665, 106, 80 Stat. 915, 917 (1966) (codified as amended at
54 U.S.C. 306108); 36 C.F.R. pt. 800.
A leader of a Native Hawaiian organization said that the
revisions to the regulations should recognize that Native
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Hawaiians are the experts of their lands.
NAGPRA regulations also prohibit intentional excavation of Native
American cultural items from federal lands without, among other things,
consultation with the appropriate Indian tribe or Native Hawaiian
organization. In addition, NAGPRA regulations require consultation with
Indian tribes or Native Hawaiian organizations when Native American
cultural items are inadvertently discovered on federal lands. \21\
According to the National Congress of American Indians, federal
consultation with tribes can help to minimize potential negative
effects of federal infrastructure projects on tribes' natural resources
and cultural items, which may include cultural items subject to NAGPRA.
In 2020, we reported that effective consultation is a key tenet of the
government-to-government relationship the United States has with Indian
tribes, which is based on tribal sovereignty. \22\ We also noted that
failure to consult, or to consult effectively, sows mistrust; risks
exposing the United States to costly litigation; and may result in
irrevocable damage to Native American cultural items.
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\21\ Specifically, federal land management agencies are required to
consult with (1) Indian tribes on whose aboriginal lands the planned
activity will occur or where the inadvertent discovery has been made;
(2) Indian tribes and Native Hawaiian organizations that are, or are
likely to be, culturally affiliated with the Native American cultural
items; and (3) Indian tribes and Native Hawaiian organizations that
have a demonstrated cultural relationship with the cultural items. 43
C.F.R. 10.4(d)(1)(iv). Agencies must initiate this consultation as
soon as possible but no later than 3 working days after receipt of
written confirmation of the inadvertent discovery of the items by the
person who made the discovery. If the inadvertent discovery occurred in
connection with an on-going activity on federal or tribal lands, the
person who makes the discovery must stop the activity in the area of
the inadvertent discovery and make a reasonable effort to protect the
Native American cultural items inadvertently discovered. 43 C.F.R.
10.4(c).
\22\ GAO-20-466T.
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In a 2019 report and 2020 testimony about federal agencies'
consultations with Indian tribes for federal infrastructure projects
and sacred objects, we reported that several key factors hamper
effective tribal consultations. \23\ These key factors included
agencies initiating consultation late in project development stages and
not respecting tribal sovereignty or the government-to-government
relationship between federally recognized tribes and the federal
government. In addition, we also reported that federal agencies faced
challenges in obtaining and maintaining accurate contact information
for tribes, which is needed to notify tribes of consultation
opportunities. To address these issues, in March 2019, we made one
matter for congressional consideration and 22 recommendations including
that federal agencies take steps to improve their tribal consultation
process. As of January 2022, we had closed 11 of the 22 recommendations
as implemented and 11 remain open.
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\23\ GAO-19-22 and GAO-20-466T.
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Challenges with Better Protecting Cultural Items
Some Native American cultural items have a direct cultural link to
modern-day Native American communities who live or whose ancestors
lived on the lands. While cultural and religious practices vary, tribes
may consider some items at these sites to be sacred or have other
profound significance. They consider the theft or damage of these items
to be detrimental to the preservation of their culture and traditions.
NAGPRA prohibits the theft and damage of Native American cultural
items, such as sacred objects, on federal and tribal lands. Federal
agencies also help protect these items by attempting to prevent theft
and damage and by investigating such crimes. In 2021, we reported that
seven federal agencies have taken a variety of approaches to help
prevent and detect the theft and damage of Native American cultural
items on federal and tribal lands that may contain such items. \24\
These agencies' approaches included conducting public awareness
programs, installing physical protection measures and monitoring sites
with electronic surveillance equipment.
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\24\ GAO-21-110.
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However, resource constraints and limitations with data to support
decisionmaking hamper some federal agencies' efforts to prevent,
investigate, and prosecute incidents of theft and damage to Native
American cultural items. In March 2021, we made seven recommendations
that each agency take steps to identify and obtain information to
enhance their ability to analyze and respond to risks to Native
American cultural items. As of January 2022, these seven
recommendations remained open.
Challenges with NAGPRA's Scope and Enforcement
Limitations in the prohibitions on theft and trafficking of Native
American cultural items pose another challenge to protecting Native
American cultural items. We reported in 2018 that although several
federal laws address the theft and trafficking of Native American
cultural items, these laws are limited in scope and only apply to the
theft or trafficking of certain items. \25\ In August 2018, we made 12
recommendations, three to each of the four agencies, including a
recommendation that the agencies assess the U.S. legal framework
governing the export, theft, and trafficking of Native American
cultural items. The agencies generally agreed with our recommendations.
\26\ As of January 2022, we had closed two of the 12 recommendations as
implemented and 10 remain open.
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\25\ GAO-18-537.
\26\ The Department of Justice disagreed with the recommendation to
assess the U.S. legal framework. We believe this recommendation is
still valid, as discussed in the report.
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For example, the criminal prohibition in NAGPRA applies only to
Native American cultural items obtained in violation of the act. This
criminal prohibition would apply to a person selling a sacred object
that was obtained from federal land after NAGPRA's enactment without
meeting the requirements for intentional excavation but would not apply
to a person selling sacred objects they excavated from their privately
owned land, even if that land is located within a tribe's ancestral
homelands.
Moreover, in situations where the theft or trafficking of an item
falls within the scope of NAGPRA, agency and tribal officials said it
can be challenging to provide sufficient evidence to prove the
violation in court. For example, to prove a NAGPRA violation, there
must be evidence that the item in question was removed from federal or
tribal land and was taken after NAGPRA was enacted. Further, as we
reported in 2021, \27\ according to an FBI official, it can be less
burdensome to prove a violation of the Bald and Golden Eagle Protection
Act, than to prove a violation of NAGPRA when a Native American
cultural item includes bald eagle feathers. \28\
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\27\ GAO-21-110.
\28\ 16 U.S.C. 668(a). The Bald and Golden Eagle Protection Act
prohibits, among other things, possession of eagle feathers unless
allowed by permit.
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In a recent consultation with Interior on draft proposed revisions
of NAGPRA regulations, one tribal official noted that the NAGPRA
regulations do not require a permit for intentional excavation of
private lands within the boundaries of an Indian reservation even
though those are tribal lands subject to NAGPRA. Another tribal
official noted that it does not apply when private collectors hold
objects that would be subject to repatriation under NAGPRA if they were
held by museums or federal agencies.
In conclusion, during the 30 years since the passage of NAGPRA,
federal agencies have made some progress in addressing the act's
requirements, including repatriating over 1.7 million associated
funerary objects with human remains, according to the National NAGPRA
Program's fiscal year 2020 annual report. However, as we have
previously reported and as tribes and tribal organizations have noted,
agencies continue to face challenges in implementing and enforcing
NAGPRA.
Such challenges point to the value of further examining how NAGPRA
is being implemented, including efforts to consult with tribes and
Native Hawaiian organizations, better protect cultural items, and
address challenges with the law's scope and enforcement. Overall,
NAGPRA was a significant step forward in recognizing the dignity of
Native American people and supporting tribes' political sovereignty.
However, while agencies have made progress in repatriating remains to
culturally affiliated tribes, human remains of more than 116,000
individuals are still in federal possession and have not yet been
culturally linked to a present day tribe or Native Hawaiian
organization. By implementing open recommendations from our prior work,
federal agencies will continue to make progress in their efforts to
improve tribal consultations and protect Native American cultural
items.
Chairman Schatz, Vice Chairman Murkowski, and Members of the
Committee, this completes my prepared statement. I would be pleased to
respond to any questions that you may have at this time.
The Chairman. Thank you very much.
Next, we are pleased to welcome, from Hawaii, Carmen Hulu
Lindsey, the Chair of the Office of Hawaiian Affairs.
STATEMENT OF CARMEN ``HULU'' LINDSEY, CHAIR, OFFICE OF HAWAIIAN
AFFAIRS
Ms. Lindsey. Mahalo, Chair. I would also like to wish
Senator Lujan a speedy recovery.
[Greeting in Native tongue], much aloha to Chair Schatz, to
Vice Chair Murkowski, and to the members of the Senate
Committee on Indian Affairs. My name is Carmen Hulu Lindsey,
and I am the elected trustee from the island of Maui and the
Chairperson of the Board of Trustees for the Office of Hawaiian
Affairs.
Our mission is to better the conditions of Native
Hawaiians. I am here today to speak about the role the Native
American Graves Protection and Repatriation Act, NAGPRA, has
had on Native Hawaiians. Iwi, our bones, and their care and
protection holds an elevated status in our Hawaiian culture, as
they have for thousands of years.
Iwi, our most cherished possession, the late Mary Kawena
Pukui, a cultural icon and renowned Hawaiian scholar, has
taught us the importance. We identify each other by literally
the bone. Not only do the iwi possess the spiritual power and
essence of the individual, they are also our direct connection
to our ancestors for communication and guidance. For we do not
bury our dead, we kanu, or plant them back into the earth from
whence they came, to continue to nourish, heal, and guide
future generations.
This critical cycle has been disrupted due to the mass
interment and desecration of our ancestors, especially in the
last century of unfettered development in our island home. When
NAGPRA was enacted in 1990, here in Hawaii, the State of Hawaii
passed human rights legislation to provide for the care,
management and protection of unmarked burial sites in the
islands, of which there are tens of thousands primarily
comprised of our Native Hawaiian ancestors.
This legislation prompted by the deliberate and intentional
excavation of the resting places of our ancestors after which
they would not only sit in boxes on museum shelves, but would
also be sent all over the world for collection and study. Just
over 30 years ago, the mass excavation of the sacred remains of
over 1,110 men, women, children, and infants out of their final
resting place occurred at Honokahua on my island home of Maui,
to build a large hotel resort. At the same time, hundreds of
remains were being disinterred at another large resort in
another area of Maui. Public outcry led to changes in our laws.
While we continue to address ongoing disinterment and the
desecration of our ancestral burial sites in the islands, it
was NAGPRA which allowed Native Hawaiians to bring thousands of
our ancestors home to be respectfully venerated and
ceremoniously reburied. Ten years after the passage of NAGPRA,
almost 4,000 of our Native Hawaiian ancestors were repatriated
out of our local museum on Oahu only. Thousands more iwi were
also repatriated from museums and institutions across the
United States and internationally by using NAGPRA as a model.
NAGPRA is living proof of what may be accomplished when
individuals and organizations build a bridge founded on mutual
respect and our shared humanity. Native Hawaiians are humbled
and grateful to be of service to our beloved ancestors, knowing
that but for them, we simply would not exist.
In the increasingly contentious times now present in our
world and in the greater story of humanity, caring for our
ancestors guides, strengthens, and teaches us the enduring
value of aloha, which embodies the concepts of love,
compassion, and forgiveness. [Phrase in Native tongue.] No task
is too big when done together by all.
OHA wants to help, and we offer the Committee our written
suggestions for future NAGPRA amendments. We stand ready to
assist as this august Senate Committee may require.
Ola na iwi, the bones live. Mahalo for this opportunity to
testify.
[The prepared statement of Ms. Lindsey follows:]
Prepared Statement of Carmen ``Hulu'' Lindsey, Chair, Office of
Hawaiian Affairs
Aloha e Chairman Schatz, Vice Chairman Murkowski, and the Members
of the U.S. Senate Committee on Indian Affairs.
Mahalo nui loa (Thank you very much) for inviting me to testify on
behalf of the Office of Hawaiian Affairs (OHA) and our beneficiaries--
the Native Hawaiian community. Over the years, this Committee has
consistently been comprised of dedicated, intuitive individuals that
collectively and sincerely examine problems unique to the Native
American, Native Hawaiian, and Alaskan Native peoples. Most
importantly, you have listened and proposed legislation to overcome
these identified problems. OHA again recognizes Chairman Schatz for
your work on behalf of our families in Hawai`i. Your work here empowers
the Native community to continue exercising true self-determination in
all aspects of our lives.
One of the many ways that we seek and claim such self-determination
is through the return and reburial of our Native ancestors who were
unjustly disinterred and taken away to institutions and facilities--
both here at home, and abroad all over the world. The Native American
Graves Protection and Repatriation Act (NAGPRA) established in 1990
solidified the ability for Native peoples to make these claims in the
U.S. and work towards healing past injustices that violated the
sanctity of the grave. The road to NAGPRA was a difficult one, but an
important battle for human rights. Mahalo to this Committee for walking
this road with us.
Background on OHA and its standing to represent Native Hawaiians
Established by our State's Constitution, \1\ the Office of Hawaiian
Affairs is a semi-autonomous State agency that was created after a
Constitutional Convention in 1978 for the betterment of Native
Hawaiians. Guided by a board of nine publicly elected trustees, all of
whom are currently Native Hawaiian, OHA fulfills its mandate through
advocacy, research, community engagement, land management, and the
funding of community programs.
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\1\ HAW. CONST., art. XII, 5 (1978).
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Much like occurrences in the Continental U.S. during the latter
half of the 20th century, Hawaiians too were pushing back against rapid
development out of a sense of survival to preserve cultural sites,
burials, and resources as economic stimulus packages that followed the
Great Depression and World War II were being pushed as part of
political agendas and to feed a rapidly growing American population.
Further, increased militarization contributed to desecrations as
thousands of Hawaiian burials were exposed during the 1940s and beyond,
with the development of the Marine Corps Base on the Mokapu peninsula.
Sadly, to this day, these iwi kupuna (ancestral Hawaiian remains) have
not been laid to rest; yet, remain closer than ever to a final rest due
to the unending love and tireless work of their descendants.
Notably, the latter half of the 1970s is looked at by some as a
``Hawaiian Renaissance'' or ``Reawakening''. In Hawai`i, displaced
farmers (i.e., Kalama Valley Farmers, Waiahole-Waikane Farmers) and
cultural practitioners found a sense of unity in their struggles as
Hawai`i was rapidly changing in the 1970s with continued urban
expansion. With the success of environmental protest in the 1960s,
social and cultural activists were following suit in the 1970s all
across America and other parts of the globe (e.g., New Zealand,
Australia). In some ways, the creation of OHA was one of the crowning
achievements of this era in Hawai`i as OHA has since been around to
effectively advocate for Native Hawaiian rights and resources. This is
especially true at the federal level. OHA is specifically enumerated
within NAGPRA because of its expertise in Hawaiian affairs and
repatriation.
As NAGPRA was coming to be, laws were changing in Hawai`i as iwi
kupuna were consistently being desecrated during development projects
for hotels, resorts, and condominiums--many of which were located along
the shoreline and sandy dunes, where many generations of Hawaiians
chose to bury their dead. We must not forget that in 1986, over 1,100
of our iwi kupuna consisting of men, women, children and infants, were
systematically disinterred in Honokahua, Maui, during the construction
of the Ritz Carleton hotel at Kapalua. As the number of exposed iwi
continued to climb, it was only through public outcry, and ultimately
executive action, via former Governor John Waihe`e, that the project
was halted. Ultimately, the resort was moved inland in avoidance of the
massive burial ground and a burial preserve was established via an
agreement document with OHA and Hui Alanui `o Makena in 1988.
Furthermore, the situation at Honokahua further prompted the
creation of Hui Malama I Na Kupuna `o Hawai`i Nei, another key Native
Hawaiian organization (NHO) specifically mentioned in NAGPRA and the
National Museum of the American Indian Act. Additionally, OHA
established a Native Hawaiian Historic Preservation Task Force in 1989
that led to the recommendation for the State to create five Island
Burial Councils (IBC) to oversee the disposition of Hawaiian burials.
Honokahua was the genesis of Act 306 in 1990 which amended our historic
preservation law (Chapter 6E, Hawai`i Revised Statutes), and which
established both the IBCs and State Historic Preservation Division
procedures for the care, management and protection of unmarked burial
sites in the islands regardless of ethnicity. These tools have been
invaluable for the protection of iwi kupuna, yet much work remains.
Collaborative NAGPRA Work and Successes Over the Last 30 Years
Over the years since the very beginnings of NAGPRA, the Office of
Hawaiian Affairs has participated in domestic and international
repatriations in partnership with other NHOs, families, and
beneficiaries. In many cases, beneficiaries bring information to OHA
about filing a repatriation claim and OHA assists them through the
process to provide the necessary resources to carry it out. For
decades, OHA partnered with Hui Malama I Na Kupuna, the only other NHO
specifically called out in NAGPRA with OHA, as well as other NHOs,
including various IBCs as co-claimants. Together, we were able to
successfully repatriate thousands of iwi kupuna from all across the
world in over 120 repatriation efforts, and here at home in the islands
as well. While Hui Malama is now dissolved, OHA still works closely
with community members who are former members and identified as
traditional religious leaders.
In the 1990s, OHA worked with NHOs to assist in the successful
repatriation of thousands of remains, not only from institutions on the
Continent, but right here at home with the Bishop Museum. An estimated
3,000 individuals from Marine Corps Base Hawai'i development work at
Mokapu were held at the Bishop Museum for over 50 years. The museum's
island of O'ahu Collection alone contained over 1,000 individuals
collected over a span of almost 90 years. When disagreements arose
during these early years of NAGPRA, OHA was there to assist fellow
Native Hawaiians with taking disputes to the NAGPRA Review Committee
for consideration. For a time, Native Hawaiian cases were the most
heard by the Review Committee.
Some of our most recent successes alongside community leaders
include the repatriation of ancestral remains from Berkeley and Case
Western Reserve University in early October. Notably, this effort also
saw the return of a lei niho palaoa (whale tooth necklace suspended
with human hair) from the Cleveland Museum of Natural History. At
present, a team of dedicated Native Hawaiians working closely with OHA
are enroute to Germany and Austria to recover ancestral remains on
OHA's behalf. While international efforts are not covered under NAGPRA,
institutions abroad often choose to follow our domestic repatriation
process and increasingly are requiring that repatriations be
coordinated with U.S. Embassies located in that particular country.
Thus, the wisdom of NAGPRA and the expertise of the U.S. Department of
Interior extends far beyond our national borders, thus enabling the
return of our iwi kupuna from across the globe.
It is these kinds of partnerships that make repatriations work.
Repatriation work can be costly and very technical at times. OHA serves
Native Hawaiians by taking action in these situations and providing
much needed eduation. As part of the interactive repatriation process,
OHA has provided informational presentations about NAGPRA to potential
claimants by explaining the process and their role in it. In 2018,
OHA's Compliance team flew to Kona to provide a series of PowerPoint
presentations and workshops to the families of Honaunau to repatriate
an ancestral effigy taken from the Hale o Keawe (a chiefly mausoleum)
in 1825 that now resides in the Chicago Field Museum. Unfortunately,
the Chicago Field Museum has challenged the families' interpretation of
the effigy as being funerary in nature and Hale o Keawe as constituting
a burial site.
While it may be possible for these individuals and NHOs to apply
for NAGPRA grants on their own, some of these individuals work two jobs
and don't have the technical expertise to submit a competitive grant.
In this regard, OHA's assumption of the repatriation related costs
(inclusive of travel, reburial fees, paperwork) lessens the financial
burden to these Native Hawaiian claimants. OHA serves as a mentor and
guide while also empowering these families and NHOs with the knowledge
and expertise to advocate for themselves and share what they have
learned. As a result, a community network and coalition of family
members is now able to take on the responsibility of culling through
museum holdings in search of their ancestral remains. It is heartening
to see these Native Hawaiians well informed and able to effectively
advocate on their own for the return of their Native Hawaiian
ancestors.
Priorities for NAGPRA Improvement
Despite the many successes and improvements NAGPRA has enabled in
the care and return of our Native Hawaiian ancestors, we know there
will be challenges ahead. In an effort to improve an already seminal
and vital NAGPRA statute, we offer the following amendments to: 1) the
definition of a NHO; 2) the composition of the NAGPRA Review Committee;
3) the protection of confidential information disclosed as part of the
NAGPRA process; and, 4) the extension of certain NAGPRA requirements to
collections on loan. A fifth and final suggestion is made regarding
improvements to statutes that go beyond NAGPRA--1) lowering the mens
rea for NAGPRA trafficking crimes, and 2) creating a framework
insulating private individuals from criminal liability when they
voluntarily return NAGPRA objects and Native American human remains.
1. Definition of a NHO (25 USC 3001)
The definition of NHO should be updated to require that NHOs
consist of Native Hawaiians in substantive policymaking decisions. This
change would further ensure better consistency across federal laws and
policies affecting Native Hawaiians. The current NAGPRA statute
definition does not require that a NHO actually consist of Native
Hawaiians in decisionmaking roles despite the familial importance of
repatriation to Native Hawaiians. In contrast, the NHO definition
within the Native Hawaiian Education Act (25 USC 7511) does in fact
require Native Hawaiians to be in policymaking positions. NAGPRA merely
requires that a NHO have a mission to serve Native Hawaiians.
The current language has historically been contentious and
previously presented as problematic in testimony to the Committee in
2004. \2\ In the past, a museum receiving federal funds with a stated
mission to serve Native Hawaiians believed they could qualify as a NHO
to claim human remains and funerary objects under their own control.
Allowing this would have presented a clear conflict of interest and
undermined the intent of NAGPRA. Fortunately, this museum withdrew
their attempts to qualify as a NHO after further consideration and
public objection. To eliminate this problem, we suggest the definition
include a requirement that a NHO consist of Native Hawaiians in
substantive policymaking positions within the organization in the way
that NHO is defined in other federal laws and policies.
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\2\ See December 8, 2004, Oversight Hearing before the Committee on
Indian Affairs, 108th Congress, to receive testimony on the application
of the Native American Graves Protection and Repatriation Act in the
State of Hawai`i.
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2. Composition of the NAGPRA Review Committee (25 U.S.C. 3006)
Current statute requires that the NAGPRA Review Committee consist
of seven members, two of which must be traditional Indian religious
leaders. OHA questions why this language only requires two traditional
Indian religious leaders on the Review Committee with no mention of an
explicit requirement for a traditional Native Hawaiian or Alaskan
Native religious leader. The existing definition of a traditional
religious leader does not subdivide Native Hawaiian and Tribal leaders
into separate categories and there is no rational reason why Native
Hawaiian religious leaders should be treated any differently than
Tribal religious leaders when it comes to their ability to serve on the
Review Committee. Native Hawaiian religious leaders need parity with
Tribal religious leaders when it comes to the composition of the Review
Committee. While OHA does not believe the original intent of the
language was meant to be exclusionary, OHA has received recent
complaints that traditional Hawaiian religious leaders have been
deliberately excluded from being on the Review Committee. OHA is
concerned that Native Hawaiian religious leaders may have been unfairly
excluded from serving on the Review Committee in the past. OHA believes
these concerns merit amendments to the existing statute to include a
Native Hawaiian religious leader as part of the three religious leaders
designated to serve on the Review Committee, especially since many of
our most ardent and knowledgeable NAGPRA advocates are Native Hawaiian
religious leaders--much in the way that Indian and Alaskan religious
leaders are involved in NAGPRA claims.
3. Protection of Confidential Information Disclosed as Part of the
NAGPRA Process
As part of the NAGPRA process, often times sensitive genealogical
or burial location information must be disclosed by potential claimants
as part of the process. In a recent claim with the Chicago Field
Museum, families from Honaunau provided entire genealogies from each
member of their NHO to show a lineal connection to the great Hawai`i
Island Chief Keawe. In other cases, recorded or notated consultations
may possibly discuss reburial locations. OHA is concerned that this
kind of sensitive information disclosed as part of the NAGPRA process
may not be protected if a request for such information is made pursuant
to the Freedom of Information Act (FOIA). To eliminate intrusion into
our sacred genealogies and places of our Native claimants, an exemption
is needed within NAGPRA to protect this kind of sensitive information
from being subject to FOIA requests.
4. Extension of Certain NAGPRA Requirements to Collections on Loan
With NAGPRA having been in force for over 30 years, one would think
that museums holding ancestral remains would by now have posted all
inventories required by law. However, OHA has observed situations where
collections on long-term loan have been forgotten or overlooked by a
Federal agency or museum that is actually in control of the human
remains; thus, resulting in a situation where the agency or museum in
actual control was not aware that they should comply with NAGPRA. In
the last 3 years, OHA has experienced this problem with 2 institutions
in Ohio and 1 in California. Fortunately, these institutions were able
to expedite the repatriations once learning that they held our
ancestors, without having to resort to lengthy NAGPRA penalty
processes.
OHA believes that a museum holding a loaned collection from either
a Federal agency or museum has an ethical responsibility to report non-
compliance with NAGPRA or at least to notify the Federal agency that
retains control of the human remains about NAGPRA requirements. To
reduce gaps in NAGPRA compliance, OHA recommends including statutory
language requiring museums that hold collections on loan to report
NAGPRA non-compliance or at least to advise the Federal agency or
museum retaining control that they must comply with NAGPRA's inventory
requirements.
5. Beyond NAGPRA: 1) Lowering the Mens Rea for NAGPRA Trafficking
Crimes; and, 2) Creating a Framework Insulating Private
Individuals from Criminal Liability When they Voluntarily
Return NAGPRA Objects and Native American Human Remains
Despite existing criminal enforcement mechanisms within 18 USC
1170 pertaining to the trafficking of NAGPRA objects and Native
American human remains, OHA still sees Hawaiian ancestral remains,
funerary objects, and sacred objects being sold at auction within the
U.S. by unscrupulous collectors that disregard our humanity. OHA
frequently receives alerts from the Association of American Indian
Affairs about the online sale of NAGPRA objects and Native American
human remains. Most recently, a seller attempted to sell a Native
Hawaiian fishhook allegedly made of human bone in an April 2020 online
auction. Fortunately, we were able to reclaim that fishhook with help
from the Association of American Indian Affairs, Federal Bureau of
Investigation, and the Bureau of Indian Affairs.
The fact that these online sales are still ongoing suggests that
traffickers of Native human remains and NAGPRA protected objects are
either not deterred by existing criminal enforcement statutes or
completely naive to the crimes they are committing. The claim of
naivete by some offenders has further allowed them to avoid prosecution
as the mens rea under 18 USC 1170 only requires that offenders
knowingly commit a crime.
Further, within the last decade, OHA has responded to several
inquiries from families on the mainland that discovered they are in
possession of ancestral Hawaiian remains. NAGPRA does not currently
cover ancestral remains that are in private possession, nor is there
any guidance or amnesty from NAGPRA trafficking laws afforded to these
individuals. OHA believes that many private individuals in this
situation would want to do the right thing and return ancestors that
are discovered in their possession, yet are fearful they may be
prosecuted if they do so.
While OHA is aware that private possession and criminal penalties
for trafficking NAGPRA objects are beyond the scope of NAGPRA, we do
acknowledge that Chair Schatz and Vice Chair Murkowski were co-sponsors
of the yet-to-be-enacted Safeguard Tribal Objects of Patrimony (STOP)
Act in 2020. We commend this action and hope that the provisions within
the STOP Act become law. OHA supports the intent of the STOP Act as it
would increase the maximum penalties under 18 USC 1170, would
require an export certification system for cultural objects, and would
create a framework for the voluntary return of NAGPRA objects by
private parties.
These provisions would discourage online sales of NAGPRA objects
and would encourage private individuals to voluntarily return human
remains in their possession. However, the mens rea requirement under 18
USC 1170 is problematic because a seller is required to know their
actions are illegal in order for criminal liability to attach. We
recommend that these mens rea requirements be reviewed and amended so
as to more effectively deter illegal trafficking.
Closing Remarks
In closing, the repatriation of our ancestors is part of a healing
process and a humanitarian matter at its core. Even after retrievals
are complete, healing continues as reburials are coordinated and
ceremonially conducted by Native Hawaiian claimants. As famed Hawaiian
scholar Mary Kawena Pukui has stated, iwi are our most cherished
possession. We must never lose sight of this and continue to persevere.
I wish to express my appreciation and gratitude to both the
Chairman and the Vice Chairman for taking on this responsibility. It
has been an honor to have had this opportunity to address you and your
Committee members. OHA's very capable and knowledgeable staff and I
stand ready to assist you in accomplishing this most important work,
both now and in the future.
A hui hou. Until we meet again.
Senator Murkowski. [Presiding.] Mahalo, Ms. Lindsey.
Now we will turn to Dr. Valerie Grussing.
STATEMENT OF VALERIE GRUSSING, Ph.D., EXECUTIVE
DIRECTOR, NATIONAL ASSOCIATION OF TRIBAL HISTORIC PRESERVATION
OFFICERS
Dr. Grussing. Mr. Chairman, Madam Vice Chair and members of
the Committee, thank you for this opportunity. We are also
keeping Senator Lujan in our thoughts, and sending him well
wishes for a full recovery.
My name is Valerie Grussing, and I have the honor of
serving as the Executive Director of the National Association
of Tribal Historic Preservation Officers, NATHPO. I am here
today with our Repatriation Advisor, Dr. Timothy McKeown, who
is also available to respond to questions.
We are speaking today from Silver Spring, Maryland, a D.C.
suburb, and the ancestral homeland of the Piscataway and
[Native tribe name] peoples. As a descendant of European
colonizers, I am especially grateful and humbled for the
opportunity to participate here, and to do this work.
When we are talking about healing the soul wound of our
Nation's First Peoples, we have a responsibility to support and
elevate Native voices, and demanding basic human rights. When
some of us aren't whole, none of us are whole. I have heard
some of our members say that they try to walk into a room like
their ancestors sent them. I am doing that today from my own
perspective, and I humbly offer a heartfelt apology for the
systematic injustices and atrocities inflicted upon Native
peoples, whether or not my own direct ancestors personally had
a hand. I think this is important to say and it is important to
hear in processes of reconciliation.
I offer the rest of my testimony in honor and service of
those who are not present to tell their stories, those living,
and those who have walked on, as well as those yet to come, and
with the hope that we are in a time of lasting transformational
change.
NATHPO is the only national organization devoted to
supporting tribal historic preservation officers, THPOs. These
tribal government officials protect culturally important places
and revitalize the connections to cultural heritage that
sustain the health and vitality of Native peoples. The
repatriation of Native ancestors and objects of cultural
patrimony is critically important to THPOs, who are frequently
also the NAGPRA representative for their tribe.
After more than three decades of NAGPRA, we again consider
amendments to strengthen Indian tribes' and Native Hawaiian
organizations' ability to protect gravesites and reclaim their
ancestors and objects, all basic human rights that somehow, we
are still fighting for. NATHPO has been deeply involved in
these efforts, including our report in 2008 together with the
Makah Tribe on Federal compliance with NAGPRA, and how to
improve the process. GAO produced a report on this in 2010, and
on the Smithsonian's repatriation efforts in 2011. And my and
our Chairman's predecessors testified before the House Natural
Resources Committee in 2009, and before this Committee in 2011.
Unfortunately, the recommendations and report findings
remain relevant today. We submit our report for the record as a
resource to support this Administration's commitment to
upholding the trust responsibility to tribes. We also submitted
comments in response to DOI's boarding school initiative and
draft proposed changes to the NAGPRA regulations, which we will
submit for the record. We would like to specifically thank
Secretary Haaland and the Assistant Secretaries for ensuring
that tribes are consulted as part of these initiatives.
In our written testimony, we provide data on the
implementation of NAGPRA's three sets of provisions. The law
has not been ineffective, but has a long way to go. We
recommend changes to definitions. We ask the Committee to
establish and fund an interagency task force to stop illegal
trafficking of human remains and cultural items. And we ask the
Senate to pass the STOP Act.
We support redelegating program activities to the Office of
the Assistant Secretary for Indian Affairs, as proposed in the
2020 Haaland bill to amend NAGPRA. We also request that the
Committee ask GAO to conduct three evaluations of Federal
agency compliance of enforcement, investigations, and
penalties, and of the NAGPRA grants program.
Finally, it is my duty to talk about funding. THPOs receive
dedicated Federal funding that covers an average of one staff
member. And they are not allowed to use that for their NAGPRA
duties. NAGPRA funding is even more limited, and is awarded
competitively on a project basis.
A system that makes tribes compete for limited funding for
the most sacred and foundational, restorative work is re-
traumatizing. The time is now for the Federal Government to
fulfill its promises, to fund and enforce agencies'
consultation requirements, and to fund tribes so that they have
a seat at the table complete with the meal and utensils.
Thank you again for this opportunity. We commend the
Committee for its intent to empower tribes in protecting Native
places, gravesites, and reclaiming their ancestors.
[The prepared statement of Ms. Grussing follows:]
Prepared Statement of Valerie Grussing, Ph.D., Executive Director,
National Association of Tribal Historic Preservation Officers
Good morning, Mr. Chairman and Members of the Committee. My name is
Valerie Grussing, Ph.D., and I have the honor of serving as the
Executive Director of the National Association of Tribal Historic
Preservation Officers (NATHPO). I am here today with NATHPO's
Repatriation Advisor, C. Timothy McKeown, Ph.D., who has compiled some
of the data presented in my testimony and will be available if needed
to respond to technical questions. We thank you for the opportunity to
testify as part of this oversight hearing.
NATHPO is the only national organization devoted to supporting
Tribal historic preservation programs. Founded in 1998, NATHPO is a
501(c)(3) non-profit membership association of Tribal government
officials who implement federal and Tribal preservation laws. NATHPO
empowers Tribal preservation leaders protecting culturally important
places that perpetuate Native identity, resilience, and cultural
endurance. Connections to cultural heritage sustain the health and
vitality of Native peoples. NATHPO provides guidance to preservation
officials, elected representatives, and the public about national
historic preservation legislation, policies, and regulations. NATHPO
promotes Tribal sovereignty, develops partnerships, and advocates for
Tribes in governmental activities on preservation issues.
Tribal Historic Preservation Officers (THPOs) assume the
responsibilities of State Historic Preservation Officers on Tribal
lands and advise and work with federal agencies on the management of
Tribal historic properties. THPOs also preserve and rejuvenate the
unique cultural traditions, practices, and languages of their Tribal
communities. The repatriation of Native ancestors, funerary objects,
sacred objects, and objects of cultural patrimony is critically
important to our members. NATHPO is very active on repatriation issues,
most recently in advocating for THPOs' interests as part of the
Department of the Interior's consultation on a draft proposed revision
of the NAGPRA regulations and on the Secretary of the Interior's
Boarding School Initiative. I would like to specifically thank
Secretary of the Interior Debra Haaland, Assistant Secretary for Indian
Affairs Bryan Newland, and Assistant Secretary for Fish and Wildlife
and Parks Shannon Estenoz for ensuring that Tribes are consulted as
part of these initiatives.
The Native American Graves Protection and Repatriation Act of 1990
(NAGPRA), along with the repatriation provisions of the National Museum
of the American Indian Act of 1989 (NMAI Act), establish Federal
requirements for Federal agencies and museums, including the
Smithsonian Institution, regarding the repatriation or disposition of
Native American human remains and other cultural items to lineal
descendants, Indian Tribes, and Native Hawaiian organizations. The NMAI
Act was amended in 1996 to bring it more in line with NAGPRA, \1\ but
NAGPRA itself has never been amended substantively. \2\ It is fitting
that after more than three decades of implementing NAGPRA we take this
opportunity to assess its effectiveness and consider amendments to
enhance Indian Tribes' and Native Hawaiian organizations' ability to
protect grave sites and reclaim their ancestors, funerary objects,
sacred objects, and objects of cultural patrimony.
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\1\ Pub. L. 104-278, 4, Oct. 9, 1996, 110 Stat. 3355.)
\2\ Pub. L. 102-572, title IX, 902(b)(1), Oct. 29, 1992, 106
Stat. 4516
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NAGPRA includes three separate sets of provisions. The first set
governs the protection of Native American graves and the disposition of
cultural items excavated or discovered on Federal and Tribal lands
after 1990. The second set of provisions requires museums and Federal
agencies to prepare summaries and inventories of their collections and,
upon request, repatriate cultural items to lineal descendants and
culturally affiliated Indian Tribes and Native Hawaiian organizations.
The third set of provisions establish criminal penalties for illegal
trafficking of Native American human remains and cultural items. I will
first address some concerns expressed by tribal governments related to
one of the definitions in NAGPRA and then each of these three sets of
provisions in turn.
25 U.S.C. 3001-Definitions
The most problematic definition in the Act is that of ``Native
American.'' NAGPRA defines the term to mean ``of, or relating to, a
tribe, people, or culture that is indigenous to the United States.''
However, in 2004, the United States Court of Appeals for the Ninth
Circuit interpreted the term ``Native American'' to require that human
remains and other cultural items ``must bear a significant
relationship'' to a presently existing Tribe, people, or culture to be
considered Native American. \3\ Not only was this incorrect opinion
antithetical to the purpose and policy underlying NAGPRA, it
necessitated passage of separate legislation to enable reburial of the
9,000-year-old human remains at issue in the case, and it created
ambiguity which, in at least one case, has led to an acquittal in a
NAGPRA trafficking case. \4\ In order to address this issue, NATHPO
recommends that the Congress amends NAGPRA's definition of ``Native
American'' to read as follows:
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\3\ Bonnichsen v. United States, 367 F.3d 864, 878 (9th Cir. 2004)
(emphasis in original).
\4\ U.S. v. Deluca, No. 00 CR 387 (N.D. Ill. Mar. 6, 2002).
(9) ``Native American'' means of, or relating to, a tribe,
people, or culture that is or was indigenous to any geographic
area that is now located within the boundaries of the United
---------------------------------------------------------------------------
States.
25 U.S.C. 3002-Ownership
The ownership provisions apply to the discovery, removal, or
excavation of Native American cultural items on Federal lands and
Tribal lands after 1990. NAGPRA and its implementing regulations
require persons who discover Native American human remains or other
cultural items on Federal or Tribal lands to immediately stop any
ongoing activity and provide immediate telephone notification of the
inadvertent discovery, with written confirmation, to the responsible
Federal land manager. The Federal land manager then must notify the
appropriate Indian Tribes or Native Hawaiian organizations and begin
consultation about the disposition of cultural items and complete a
plan of action. The activity that resulted in the inadvertent discovery
may resume thirty days after certification by the Federal land manager
of receipt of the written confirmation of notification, or sooner if a
written, binding agreement is executed between the Federal agency and
the appropriate Indian Tribes or Native Hawaiian organizations.
Discovered human remains or other cultural items may only be removed or
excavated after consultation with the appropriate Indian Tribes and
Native Hawaiian organizations, or, in the case of Tribal lands, with
the consent of the appropriate Indian Tribe or Native Hawaiian
organization. The excavation or removal of cultural items must also
comply with the requirements of the Archaeological Resources Protection
Act (ARPA). NAGPRA provides a detailed priority listing to determine
the ownership or control of discovered or excavated Native American
human remains and other cultural items based on lineal descent, Tribal
land, cultural affiliation, and aboriginal land. To date, only 218
discoveries and excavations of Native American human remains and other
cultural items had occurred on Federal lands, \5\ indicating that
NAGPRA has been somewhat successful in fulfilling its grave protection
mandate.
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\5\ Newspaper Notices, https://grantsdev.cr.nps.gov/NagpraPublic/
Home/NID (accessed January 27, 2022).
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NAGPRA sets standards for the disposition of human remains and
other cultural items discovered on Federal lands that are recognized by
a final judgement of the Indian Claims Commission or the United State
Court of Federal Claims. \6\ The advisory committee has adopted this
standard in its recommendations regarding the disposition of culturally
unidentifiable human remains in museum or Federal agency collections,
but elaborated on the basis for determining aboriginal lands. The
current regulations allow aboriginal lands to also be determined by a
treaty, Act of Congress, or Executive Order. \7\ In order to bring the
ownership and repatriation provisions in line, we request that the
committee amends the provisions of 25 U.S.C. 3002 (a)(2)(C) to read
as follows:
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\6\ 25 U.S.C. 3002 (a)(2)(c).
\7\ 43 CFR 10.11 (c)(1)(ii).
if the cultural affiliation of the objects cannot be reasonably
ascertained and if the objects were discovered on Federal land
that is recognized by a final judgment of the Indian Claims
Commission or the United States Court of Claims, or a treaty,
Act of Congress, or Executive Order as the aboriginal land of
---------------------------------------------------------------------------
some Indian Tribe----
The ownership section has proved the most prone to litigation, due
in part to the brevity of the statutory provisions as well as the lack
of any institutionalized form of alternative dispute resolution. We
hear from THPOs that in many cases Federal agency officials are failing
to adequately consult with Indian Tribes following inadvertent
discoveries and are failing to complete the plans of action required by
regulation. To get a better grasp of Federal compliance with NAGPRA's
provisions protecting Native American graves and cultural items, we ask
the committee to:
request the Government Accountability Office to complete an
evaluation of Federal agency compliance with the requirements
of 25 U.S.C. 3002 and its implementing regulations,
particularly focusing on consultation, completion of plans of
action and comprehensive agreements, publication of notice of
intended disposition, and the disposition of so-called
``unclaimed'' cultural items, and whether establishing a
dedicated position to ensure compliance with these provisions
at each agency would be beneficial.
25 U.S.C. 3003-3008-Repatriation of Cultural Items in Federal
Agency and Museum Collections
The repatriation provisions of NAGPRA require Federal agencies and
museums that receive Federal funds to prepare written summaries of
cultural items and more detailed inventories of Native American human
remains and association funerary objects in their possession or
control, consult with Indian Tribes and Native Hawaiian organizations
and, upon request, repatriation cultural items. To date, slightly more
than 200,000 Native American ancestors have been inventoried, of which
museums and Federal agencies have indicated a willingness to repatriate
approximately 42 percent. \8\
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\8\ 2021 Native American Graves Protection and Repatriation Act.
https://public.tableau.com/app/profile/nationalnagpra/viz/
2021NativeAmericanGravesProtectionandRepatriationAct/1_Reported
(accessed January 30, 2022).
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NAGPRA establishes a seven-person advisory committee with one of
its responsibilities being to compile an inventory of culturally
unidentifiable human remains that are in the possession or control of
each Federal agency and museum and recommend specific actions for
developing a process for disposition of such remains. After long
discussions, development of several drafts, and extensive public
consultation, the advisory committee issued its recommendations in
2000. \9\ The advisory committee noted that although the legal standing
of funerary objects associated with culturally unidentifiable human
remains is not addressed in NAGPRA, the statute does not prohibit their
voluntary repatriation by museums or Federal agencies to the extent
allowed by Federal law. Regulations implementing the advisory
committee's recommendations were promulgated in 2010. \10\ The
regulations require museums and Federal agencies that cannot prove
right of possession to offer to transfer control of culturally
unidentifiable human remains to the Indian Tribe or Native Hawaiian
organization from whose Tribal land, at the time of the excavation or
removal, the human remains were removed, or to the Indian Tribe or
Tribes that are recognized as aboriginal to the area from which the
human remains were removed. The regulations also recommend that a
museum or Federal agency transfer control of funerary objects that are
associated with culturally unidentifiable human remains if Federal or
State law does not preclude it. NATHPO feels strongly that Native
American funerary objects in museum or Federal agency collections
should be returned along with Native ancestors with which they were
lovingly buried. We request that the committee amend the advisory
committee's responsibilities at 25 U.S.C. 3006 (c) as follows to
explicitly authorize a requirement that human remains and associated
funerary objects be returned together:
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\9\ Recommendations Regarding the Disposition of Culturally
Unidentifiable Native American Human Remains, 65 Fed. Reg. 36462 (June
8, 2000).
\10\ See 43 CFR 10.11--Native American Graves Protection and
Repatriation Act Regulations--Disposition of Culturally Unidentifiable
Human Remains; Final Rule, 75 Fed. Reg. 12377 (Mar 15, 2010).
(5) compiling an inventory of culturally unidentifiable human
remains and associated funerary objects that are in the
possession or control of each Federal agency and museum and
recommending specific actions for developing a process for
---------------------------------------------------------------------------
disposition of such remains and objects;
NAGPRA also authorizes the Secretary of the Interior to assess
civil penalties on museums that fail to comply with the repatriation
provisions of the Act. Information obtained by Dr. McKeown shows that,
to date, 21 museums have failed to comply, one twice, and that
$64,646.34 in penalties were assessed. We also know that in 2017 the
National Park Service had a backlog of allegations against another 62
museums that had not been investigated and that no failures to comply
have been determined since then.
NATHPO is very concerned that civil enforcement of NAGPRA has been
carried out without any degree of public scrutiny, that the penalties
assessed are typically mitigated or unknown, and that since 2016 it
appears to have completely stopped. We ask the committee to:
request the Government Accountability Office to complete an
evaluation of the implementation of the civil enforcement
provisions of NAGPRA and its implementing regulations,
particularly focusing on ensuring that all allegations are
adequately investigated in a timely manner, that the full range
of penalties are considered, and that the results of these
investigations are publicly known.
NAGPRA authorizes the Secretary of the Interior to make grants to
Indian Tribes and Native Hawaiian organizations for the purpose of
assisting such Tribes and organizations in the repatriation of Native
American cultural items, and to museums for the purpose of assisting
the museums in conducting the inventories and summaries. \11\ Grants
funding may not be used for the initiation of new scientific studies of
Native American human remains and associated funerary objects or other
means of acquiring or preserving additional scientific information from
such remains and objects. \12\ In 1990, the Congressional Budget Office
estimated that NAGPRA would cost the Federal Government between $20 and
$50 million. \13\ At the end of FY2020, $50.02 million in grants had
been awarded, \14\ yet the remains of over 117,000 Native American
ancestors still sit on museum and Federal agency shelves. \15\ Funding
needs from Tribes exceed the available grant appropriation and the
maximum grant cap ensures that progress towards repatriation is
piecemeal and slow. Some THPOs have also expressed concern that some
museums may be using grant money to acquire and preserve additional
scientific information on human remains and associated funerary
objects. We ask the committee to:
\11\ 25 U.S.C. 3008.
\12\ 25 U.S.C. 3003 (b)(2).
\13\ Letter from Robert D. Reischauer, director, Congressional
Budget Office to Representative Morris Udall (October 15, 1990).
\14\ National NAGPRA Program, Fiscal Year 2020 Report.
\15\ 2021 Native American Graves Protection and Repatriation Act.
https://public.tableau.com/app/profile/nationalnagpra/viz/
2021NativeAmericanGravesProtectionandRepatriationAct/1_Reported
(accessed January 30, 2022).
---------------------------------------------------------------------------
request the Government Accountability Office to complete an
evaluation of the NAGPRA grant program, particularly focusing
on how funding has been used in the past, identifying which of
those activities can be shown to most directly result in the
repatriation of Native American cultural items, and make
suggestions as to how the grants may be most effectively used
to maximize repatriation.
18 U.S.C. 1170-Illegal Trafficking in Native American Human Remains
and Cultural Items
The criminal provisions of NAGPRA make it a crime to knowingly
sell, purchase, use for profit, or transport for sale or profit Native
American human remains or cultural items under certain conditions. For
human remains, law enforcement must prove beyond a reasonable doubt
that the financial incident occurred without the right of possession,
meaning that the defendant cannot show that the human remains were
obtained with the voluntary consent of an individual or group that had
authority of alienation. Proving illegal trafficking of cultural items
is more complicated. Law enforcement must prove beyond a reasonable
doubt that the financial incident violated NAGPRA, meaning that the
cultural items were either removed from Federal or Tribal lands without
a permit, or were obtained from a Federal agency or museum that failed
to comply with repatriation provisions of NAGPRA. Data obtained by Dr.
McKeown from the Department of Justice and the United States Courts
\16\ indicates that, to date, 125 investigations of illegal trafficking
of Native American human remains and cultural items have been opened
resulting in 34 convictions.
---------------------------------------------------------------------------
\16\ Data compiled from the Office of the United States Attorneys,
National Caseload Data, FY 2021 Data Files, and Pacer.gov
---------------------------------------------------------------------------
These data indicate that convictions for trafficking of Native
American human remains under 18 U.S.C. 1170 (a) and funerary objects
under 18 U.S.C. 1170 (b) are relatively infrequent but have continued
since NAGPRA was enacted. Convictions for trafficking of Native
American sacred objects and objects of cultural patrimony under 18
U.S.C. 1170 (b) are limited to 1993 to 2005, and further all were
convicted in the United States District Courts for the Districts of New
Mexico, Arizona, and Utah. The single not guilty verdict in 2004 stands
out. Several factors seem to be responsible for this pattern. First, 18
U.S.C. 1170 (b) convictions requiring proof that the cultural items
were obtained in violation of NAGPRA are just more difficult. Second,
the not guilty verdict in 2004 seems to reflect a chilling effect of
the Ninth Circuit's interpretation of the definition of ``Native
American'' in Bonnichsen. Third, the localization of convictions for
illegal trafficking of Native American sacred objects and objects of
cultural patrimony correlates with the activities of the Four Corners
Interagency ARPA Task Force in the early 1990s and the continued
activities of the law enforcement personnel involved in that project
into the early 2000s. Last, during the 2010s, auctions of Native
American sacred objects and objects of cultural patrimony appear to
have moved outside of the United States, primarily to France.
Addressing this pattern requires a multi-faceted approach. First,
we ask the committee to amend the definition of ``Native American'' as
previously shown to provide a uniform and clear standard for the
prosecution of trafficking cases. Second, we request the committee to
amend 18 U.S.C. 1170 requiring the government to show beyond a
reasonable doubt the trafficked human remains and other cultural items
were obtained without right of possession:
(a) Whoever knowingly sells, purchases, uses for profit, or
transports for sale or profit, the human remains or other
cultural items of a Native American without the right of
possession to those remains or items as provided in the Native
American Graves Protection and Repatriation Act shall be fined
in accordance with this title, or imprisoned not more than 12
months, or both, and in the case of a second or subsequent
violation, be fined in accordance with this title, or
imprisoned not more than omit--5 10 years, or both.
Omit--(b) Whoever knowingly sells, purchases, uses for profit,
or transports for sale or profit any Native American cultural
items obtained in violation of the Native American Grave
Protection and Repatriation Act shall be fined in accordance
with this title, imprisoned not more than one year, or both,
and in the case of a second or subsequent violation, be fined
in accordance with this title, imprisoned not more than 5
years, or both.
Third, we request the committee to establish and fund an
interagency investigative effort like the Four Corners ARPA Task Force
that will focus specifically on stopping illegal trafficking of Native
American human remains and cultural items. Last, we request that the
Senate pass the Safeguard Tribal Objects of Cultural Patrimony Act to
stop the illegal export of Native American sacred objects and objects
of cultural patrimony. Taken together, these five actions will clarify
the statutory prohibition, provide the necessary expertise to
investigate offenses, and chill the overseas market for Native
ancestors and sacred objects.
Administrative Placement of NAGPRA Implementation Responsibilities
In 2020, then-Representative Haaland introduced H.R. 8298 to amend
NAGPRA. One of her key proposals to was to redelegate enforcement and
other activities previously assigned to the National Park Service to
the Office of the Assistant Secretary for Indian Affairs instead.
NAGPRA is clearly Indian law, not only is it enshrined under Title 25
of the United States Code with oversight by this committee, but Indian
Tribes are the obvious and primary beneficiaries. Implementation of
NAGPRA should be administered accordingly and not under the rubric of
``cultural resources.'' We recognize that Secretary Haaland has the
authority to implement this redelegation by means of Secretarial Order
with follow-up revision of the Departmental Manual. If, for some
reason, this change is not implemented in a timely fashion, we request
that this committee amend 25 U.S.C. 3013 as follows:
25 U.S.C. 3013. Implementation and Enforcement
(a) The Office of the Assistant Secretary for Indian Affairs shall
be the office for implementation and enforcement and other activities
delegated by the Secretary.
(b) The United States district courts shall have jurisdiction over
any action brought by any person alleging a violation of this chapter
and shall have the authority to issue such orders as may be necessary
to enforce the provisions of this chapter.
NMAI Act Judicial Jurisdiction and Enforcement
An additional issue we request you consider is the process for the
return of Native American sacred objects and objects of cultural
patrimony from the Smithsonian Institution. At least one group of
Indian Tribes has unsuccessfully tried to recover such items from the
National Museum of Natural History and has exhausted their
administrative appeals, despite a unanimous recommendation to
repatriate from the Smithsonian's own repatriation advisory committee.
In such a situation under NAGPRA, an Indian Tribe would be able to
challenge the failure to repatriate such cultural items to the United
States District Courts (25 U.S.C. 2013). However, the NMAI Act does
not include a similar grant of jurisdiction. NATHPO recommends amending
the NMAI Act to add the following provision:
20 U.S.C. 80 q-16. Jurisdiction and Enforcement. The United
States district courts shall have jurisdiction over any action
brought by any person alleging a violation of this Act and
shall have the authority to issue such orders as may be
necessary to enforce the provisions of this Act.
We thank you for the opportunity to testify as part of this
oversight hearing, and we commend the committee for this opportunity to
assess NAGPRA, with intent to enhance Indian Tribes' and Native
Hawaiian organizations' ability to protect grave sites and reclaim
their ancestors, funerary objects, sacred objects, and objects of
cultural patrimony.
Senator Murkowski. Thank you, Dr. Grussing.
Now we will turn to Dr. Rosita Worl. Welcome to the
Committee, and thank you for making the long travel.
STATEMENT OF ROSITA WORL, Ph.D., PRESIDENT, SEALASKA HERITAGE
INSTITUTE
Dr. Worl. Aan, yatgu saani. Most noble Chair Senator
Schatz, and other Committee members, and if I may, including
our own Alaska Senator, beloved and respected Senator
Murkowski, Aanshawatk'i, Lady of the Land, of the Deisheetaan
clan, I am honored to have this opportunity to speak to you
today.
In honor of my ancestors, and in accordance with our
cultural protocols, may I tell you who I am in Tlingit: Lingit
x'einax Yeidiklats'okw ka Kaahani ax saayi. Shangukeidi ka
Chaak' naa xat sitee. Kawdliyaayi Hit aya xat. Lukaax.adi
dachxaank aya xat.
My Tlingit names are Yeidiklats'okw and Kaahani. I am of
the Shankgukeidi clan and the Eagle moiety. I am from the House
Lowered from the Sun in Klukwan, Alaska. I am a Grandchild of
the Lukaax.adi clan. In English, I am known as Rosita Worl and
I serve as president of the Sealaska Heritage Institute. May I
thank Senator Murkowski for that wonderful introduction.
I was privileged to serve on the NAGPRA Review Committee
for 13 years, from 2000 to 2013, including serving as its
Chair. From my own work with NAGPRA and from the multitude of
voices I heard from Native Americans across the Country and
from Hawaiians during my 12-year tenure, I came to appreciate
that NAGPRA is one of the most significant legislative acts in
our history.
Congress recognized the significance of cultural property
held by museums and other entities. They understood the
traumatic harm that had come from the expropriation of our
sacred objects and our ancestral human remains from our
homelands; and then the need to return them to their original
owners and descendants.
First, I would like to go on record as supporting
Representative Haaland's proposed legislation, H.R. 8298, to
amend NAGPRA, to move the enforcement office to the Bureau of
Indian Affairs, to increase civil monetary penalties for
failure to follow the processes established by that Act, and to
protect confidential information.
Secondly, I would like to offer a series of recommendations
for your consideration. First, I would like to have it
clarified that Alaska Native Corporations are eligible to
participate in the Native American Protections and Repatriation
Act. And Madam Vice Chair, I have appended information on that
background.
I would also recommend and allow for the reburial of
ancestral human remains at the site from which they were taken.
Often, we are told to sneak onto Federal lands to rebury our
ancestors from the original site from which they were taken. We
do not believe that this is appropriate.
Third, we would like to amend NAGPRA to require review
committee findings in dispute as mandatory rather than
advisory. Tribes go to a great deal of effort and expense to
bring the case before the committee, a committee comprised of
scientists, museum professionals, and tribal members, without
any guarantee that the committee's finding will be acted upon.
Four, a discrete category of funding to support disputes.
And then increase NAGPRA funding for tribes and museums. I know
that this is a consistent recommendation of the review
committee.
Madam Vice Chair, I have also outlined a number of comments
on the draft proposed rules. We have reviewed the National
Association of Tribal Historic Preservation Office's letter of
September 10th, 2021, which I have appended to my testimony. We
want to thank, first of all, the Secretaries for their support.
We would like to go on record as supporting the tribal
officers' position on the draft proposed rules.
However, Madam Vice Chair, we do have a number of
recommendations that we would like to submit for your
recommendation in our written testimony. So, gunalcheesh.
[The prepared statement of Ms. Worl follows:]
Prepared Statement of Rosita Worl, Ph.D., President, Sealaska Heritage
Institute
Aan yatgu saani. Most Noble Chair Senator Schatz and other
committee members; and if I may, including our own Alaska Senator
Murkowski, or as she is known to us, Aanshawatk'i, Lady of the Land, of
the Deisheetaan clan, I am honored to have this opportunity to speak to
you today.
In honor of my ancestors, and in accordance with our cultural
protocols, may I tell you who I am in Tlingit:
Lingit x'einax Yeidiklats'okw ka Kaahani ax saayi.
Shangukeidi ka Chaak' naa xat sitee.
Kawdliyaayi Hit aya xat.
Lukaax.adi dachxaank aya xat.
My Tlingit names are Yeidiklats'okw and Kaahani.
I am of the Shankgukeidi clan and the Eagle moiety.
I am from the House Lowered from the Sun in Klukwan, Alaska.
I am a Grandchild of the Lukaax.adi clan.
In English, I am known as Rosita Worl and I serve as president of
the Sealaska Heritage Institute.
I was privileged to serve on the NAGPRA Review Committee for 13
years, from 2000 to 2013, including serving as its Chair. From my own
work with NAGPRA and from the multitude of voices I heard from Native
Americans across the country and from the Hawaiians during my twelve-
year tenure, I came to appreciate that NAGPRA is one of the most
significant legislative acts in our history. Congress recognized the
significance of tangible and intangible cultural property held by
Native Americans; the traumatic harm that had come in the expropriation
of cultural and sacred objects and ancestral human remains from Native
American homelands; and the need to return those sacred objects and
ancestral remains to their original owners and descendants.
First, I would like to go on record as supporting Representative
Haaland's proposed legislation H.R. 8298: To amend NAGPRA to move the
enforcement office to the Bureau of Indian Affairs; to increase the
civil monetary penalties for failure to follow the processes
established by that Act; and to protect confidential information.
Draft Proposed Rules
We have had the opportunity to review the National Association of
Tribal Historic Preservation Officers (NATHPO) letter of September 10,
2021, on the Draft Proposed Rules to Assistant Secretary Indian Affairs
Newland and Assistant Secretary Estenoz for Fish and Wildlife and Parks
(attached as Appendix B). * We would like to go on record as supporting
the NATHP Officers position on the Draft Proposed Rules. However, we
would like to emphasize the following points:
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* Appendix A and B have been retained in the Committee files.
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10.5 Discovery
Subsections 10.5 (b) and (c) give the impression that all or most
discoveries occur as the result of intentional ground disturbances.
These sections must also acknowledge and consider that often
discoveries result from unintentional ground disturbances caused by
natural forces (storms and floods) and unanticipated outcomes of human
activity (for example, cleaning out culverts, or the discovery of
illegal and unauthorized excavations of Indian graves). In the early
2000s, a national park in Pennsylvania experienced all of these events
that required a response on the part of park officials.
We strongly object to the removal of the requirement by the federal
official to notify and initiate consultations with any known lineal
descendant and likely culturally affiliated Indian Tribes or Native
Hawaiian Organizations within three working days of receipt of a
written confirmation of a discovery. The draft proposal authorizes the
appropriate official to take specific actions regarding the discovered
cultural items, including stabilizing or covering them, evaluating the
potential need for further excavation, and certifying that the ground-
disturbing activity may proceed with no input from lineal descendants
or affiliated tribes. This flies in the face of the purpose of NAGPRA,
which is to provide for the meaningful participation of lineal
descendants and Indian tribes in the identification and disposition of
their cultural items. Timeliness is also crucial; such notification
must occur within a tight timeframe because an immediate response is
often necessary and appropriate to ensure the protection and respectful
treatment of the cultural item(s).
We strongly and respectfully request that the proposed rule
reinstate the requirement for a written Plan of Action that has been
removed from this section. A Plan of Action, developed in consultation
with lineal descendants and Indian Tribes, will specify the appropriate
response to a discovery including the best methods and means for
stabilizing and protecting cultural items in situ, how to treat any
items that have been recovered after exposure, what steps will be taken
to evaluate the potential need for further excavation, and how the
decision will be made to certify, in the case of intentional
excavations, that ground-disturbing activities may continue. As written
(Subsections 10.5 (c), (d) and (e)), these duties are the
responsibility of the appropriate federal official.
We emphasize that the written Plan of Action is a crucial document
memorializing a consultation process that must be made part of the
discovery procedure for the responsible federal official. In our view,
the requirement for a comprehensive agreement ( 10.4 (b)) is
duplicative and could be dropped in favor of highlighting and
foregrounding the Plan of Action developed through tribal consultations
and in response to specific discovery situations that are or may
encountered. Consultation best practices are that such discussions take
place early in the process and that they be comprehensive of situations
at hand. There is no reason to have a comprehensive agreement AND a
plan of action. In practice, a comprehensive agreement looks like a
plan of action.
10.8 General
We concur with all of the NATHPO comments about this section and
provide this commentary: The elimination of the words ``or possession''
in the phrase, ``in the possession or control over holdings or
collections'' of Native American cultural items departs from statutory
language and oversimplifies and obscures a problem inherent to the
NAGPRA process necessary for the completion of inventories and
summaries. It seems that this draft rule attempts to correct this issue
by including a definition of ``control'' which does not succeed in
correcting the problem. The issue is that museums and repositories
sometimes have collections in their possession that can be traced to
other institutions and individuals (such as federal agencies, states,
universities, contractors, and others) that deposited them in the
holding museum, but do not exercise control over them. This has caused
problems during implementation in that the museum or institution in
possession of the items claims no responsibility for carrying out the
inventory and summary provisions of NAGPRA, while the entity
responsible for the deposit claims they are not responsible either.
Sometimes the collections have been in the possession of the holding
institution so long that which institution has ``control'' is in doubt.
This problem was reported during the first years of NAGPRA
implementation and remains at issue. For this reason, we strongly
recommend that the draft rule retain the statutory language.
We further point out that subsections 10.8 (b-d) attempt to
resolve this issue for federal agencies but do not provide a solution
for collections in other types of museums and repositories, or that
cannot be tracked back to a federal agency. The need for 10.8 (d)
Informal conflict resolution indicates that this is a continuing
problem. What is to suggest that an informal process will resolve the
issue that has not been resolved in 50 years?
Finally, as stated in the NATHPO letter, we also point out that the
vague requirement of a ``statement'' in 10.8 (c) does not satisfy the
statutory requirement for a summary or inventory which should be
reported to the affiliated tribes and the National NAGPRA program. We
refer you to the NATHPO letter for their comment on this topic.
10.9 (i)(3): This subsection appears to extend the scientific
study exemption that in the statute only applies to Native American
human remains to unassociated funerary objects, sacred objects, and
objects of cultural patrimony. This proposal is inconsistent with the
statute and adverse to tribal interests. We request that 10.9 (i)(3) be
deleted in its entirety.
10.10 (c)(3): We request the insertion of these sentences at the
end of this paragraph:
''Upon receiving a request to consult regarding human remains and
associated funerary objects by an Indian tribe or Native Hawaiian
organization, the museum or federal agency must immediately stop any
ongoing scientific study of such human remains and associated funerary
objects and refrain from authorizing the initiation of new scientific
study of such remains or associated funerary objects or other means of
acquiring or preserving additional scientific study information from
such remains and objects. The continuation of existing scientific study
or data collection or the initiation of new studies shall be a topic of
consultation with the requesting Indian tribe or Native Hawaiian
organization, and the restrictions noted in the previous sentence may
be modified with the mutual consent of the consulting parties.''
10.10 (h) requires a museum or federal agency to send a written
repatriation statement that conveys control of human remains and
associated funerary objects to a requesting lineal descendant, Indian
Tribe, or Native Hawaiian organization. Significantly, this requirement
includes funerary objects that are associated with human remains which
are associated with the requesting party through geographical
association. We support this change.
10.11 (b)(2) requires the Secretary, after reviewing all relevant
information, to determine if each alleged failure to comply is
substantiated or not, and to determine if a civil penalty is an
appropriate remedy. We strongly support this change.
10.11 (g) We request that the second sentence of 10.11 (g) be
revised to read: ``The daily penalty amount shall not exceed $1,408 per
day for each failure to comply, subject to .''
10.12 Review Committee We support the recommendations of NATHPO.
Recommendations:
I respectfully offer the following recommendations for your
consideration:
1) Clarify that Alaska Native Corporations are eligible to
participate in the Native American Graves Protection and
Repatriation Programs (See Appendix A).
2) Allow for the reburial of ancestral human remains at the
site from where they were taken. Tribal officials have
expressed the wish to rebury remains as close as possible to
their original resting place rather then remove them to the
present location of the tribe. This preference results from the
historical situation that many tribes have experienced, that of
forced removal from their original homeland. There is a strong
belief that a tribe's health and well-being is dependent on how
well their ancestors have been treated, and taking remains away
from their original homeland is another significant form of
displacement and disturbance.
3) Amend NAGPRA to require Review Committee Findings in
Disputes as mandatory rather than advisory. Museums are not
compelled to observe the findings of the Review Committee,
which calls into question the effectiveness of these
proceedings. Tribes go to a great deal of effort and expense to
bring a case before the Committee, without any guarantee that
the Committee's Findings will be acted upon. In our experience
(two cases), the museums either ignored the Committee's
findings or altered them to suit their purposes. This provision
(Sec. 8) is useful for authorizing an opportunity for a tribe
to present its case to qualified experts, but ultimately the
value of the effort is in question.
4) Provide a discrete category of funding to support disputes.
Disputes are very expensive undertakings that require an outlay
of significant financial resources in staff time, preparation
of statements by knowledgeable tribal experts, fees for
academic experts in a number of fields, lawyer fees, and travel
expenses for all participants. Thus, tribes must commit a
substantial financial sum to organize, prepare for, and
participate in a dispute hearing in the form of time and
expertise. This is an unfunded mandate, and while the process
may be beneficial for the repatriation process, it places a
large burden on tribes that do not have such funding available
in their ongoing operational budgets.
5) Increase NAGPRA funding for tribes and museums. This issue
has been a regular and ongoing concern of tribes and museums
since the passage of NAGPRA, and it is a regular recommendation
of the NAGPRA Review Committee in their annual reports to
Congress. We support the statements of the Committee on behalf
of participating tribes and museums, and request that
additional funding be provided to support the participating
institutions.
Thank you for this opportunity to comment and share our views and
recommendations.
Senator Murkowski. Gunalcheesh, Dr. Worl.
Until Chairman Schatz gets back, I will begin the
questioning. Dr. Worl, let me begin with you. First, I
mentioned in my opening my appreciation for your work, not only
in Alaska, but what you have done as the former chair on the
NAGPRA review committee for the Department.
As you know very well, implementation of NAGPRA in Alaska
can be challenging; it can be different than we see elsewhere
in the Country. We have unique tribal government and management
structures that just make it different. We hear in this
Committee a lot about how it is different, where you may have
multiple entities that play complementary roles in order to
determine what the culturally appropriate next steps may be
when we are dealing with sacred remains or funerary objects.
You have given a few recommendations already to the
Committee. But recognizing that because of Alaska's unique
tribal history and the unique aspects, when we were talking
about NAGPRA's application to Alaska, you have indicated that
ANCs should be eligible. If you can speak to that specifically,
and in the ways that tribes, ANCs, and non-profits can work
together so that NAGPRA does work for Alaska. Let's go a little
Alaska specific, if we may.
Dr. Worl. Thank you, Madam Chair. I will say thank you also
for acknowledging that in the last 50 years, Alaska has
developed different institutional arrangements than that of our
lower 48 brothers and sisters. We have for-profit corporations,
we have tribes, over 220 tribes, we also have regional tribal
organizations that administer health and housing and other
kinds of services to our people.
Native corporations were initially involved in the
implementation of NAGPRA. We were eligible for some 20 years.
And then I believe it was in 2010 that the GAO did a study and
from that study the recommendation came out to that the Park
Service should look at our eligibility. Then we were later
advised that ANCs and us, like Sealaska Heritage Institute,
implementing the social, cultural, educational responsibility
of Alaska Native corporations, we were the ones that were
implementing NAGPRA.
So for some 20 years, we were very active in repatriation
claims. As you know, collectors love Alaska Native material,
culture, and a lot of that was collected from all over the
world.
So we found, we started to do an inventory of all of our
cultural objects in museums. We finally quit when we reached
almost 100,000. We were busy with doing repatriation claims,
and we were very surprised when we were declared ineligible.
We did a legal review, and we thought that we should have
been declared eligible. But unfortunately, that was not the
case. In our region, repatriation claims came to all but a stop
except for our one regional tribe.
So it has been a loss for us that we have not been able to
continue this important work of seeking the returns of our
sacred objects and our ancestors.
Senator Murkowski. I want to make sure that we underscore
that. Because the role that the ANCs had been playing, as you
point out now, for two decades, had really helped facilitate
not only the inventory but the ability to work on the
repatriation efforts. Then once ANCs are deemed not eligible
under this definition or through this read that GAO has
provided, and Interior through Parks has adopted, now all of a
sudden you have ANCs that are left out of the picture. Now it
still means that your tribes can continue the efforts, the non-
profits can contribute the efforts for further repatriation.
But you have limited the ability of an overlay of the
tribal structure that has helped to facilitate much of the
repatriation efforts to this point in time. So we are actually
not only putting on pause but we are not able to move forward
because ANCs are now limited in this definitional approach.
Dr. Worl. Right.
Senator Murkowski. Is that correct?
Dr. Worl. That is absolutely correct. But in addition to
halting the repatriation process, what was also halted was
dealing with the trauma of the removal of our ancestral
remains, dealing with the removal of our sacred objects. So we
were not able to continue the path that we had been on in terms
of our cultural healing from that trauma.
So it had both the administrative, operative kind of
things, but it also had an impact on our culture.
Senator Murkowski. Thank you, Dr. Worl.
The Chairman. [Presiding.] Senator Cortez Masto.
STATEMENT OF HON. CATHERINE CORTEZ MASTO,
U.S. SENATOR FROM NEVADA
Senator Cortez Masto. Thank you, Mr. Chairman. I so
appreciate the panel discussion today.
In Nevada, we have had a few cases of high profile and
costly litigation under NAGPRA. For example, in 2016, the
Fallon Shoshone Tribe finally prevailed in a lengthy battle to
repatriate remains that were over 10,000 years old, that DNA
testing had associated with Native populations.
So Ms. Beasley, let me start with you. One of the
challenges that we have seen in Nevada is that there often has
to be consultation with the BLM regarding repatriating items
that are in university or museum possession. What we are
seeing, unfortunately, is there is a lengthy timeframe within
which the BLM consultation takes place.
Is the Administration taking steps to make agencies more
responsive? Can you respond to that?
Ms. Beasley. Thank you for your question. The Department of
the Interior is aware of the inconsistencies with the way that
the law is interpreted and applied across the United States,
including among Federal agencies. We believe that the proposed
regulatory change will go a long way toward clarifying the
roles and responsibilities of Federal agencies, as well as
clarifying the timelines and the other requirements. So we are
certainly aware of the issue and we hope that the proposed
regulations will address some of those challenges.
Senator Cortez Masto. Thank you. I appreciate your remarks.
I also know the National Park Service just hired a full-
time investigator to enhance oversight and compliance with
NAGPRA. Will you commit to working with our Committee in
providing members with annual updates on the actions of the new
investigator, or if there are challenges or more resources that
are needed to make sure we are providing the response that is
necessary?
Ms. Beasley. As you mentioned, we recently hired the first
full-time investigator for the national NAGPRA program. We look
forward to continuing the work with the Committee on the
implementation of the law.
Senator Cortez Masto. Thank you. I appreciate that.
This is for the panel members. I think it was Dr. Grussing
who touched on this. One of the issues that has come up again
and again is the lack of funding that has delayed efforts to
fully realize NAGPRA goals. At the end of fiscal year 2020, $50
million in grants had been issued since 1990, yet countless
items still need to be repatriated.
So to the panel, realistically, what type of funding
commitment would be needed to finally see the goals of this law
realized? Is anybody taking a look at that? Could you provide
any input to Congress on how we can address that? We will open
it up to the panel members, to anybody who wants to weigh in.
Dr. Ortiz. This is Anna Maria Ortiz. I can speak to some of
what happened in the wake of the GAO report in 2010. One of our
recommendations was that agencies really figure out what they
needed to do to implement the Act properly and develop
timelines for doing so.
We heard from agencies the time, including Fish and
Wildlife Service, that it would take 28 years and millions of
dollars to properly implement the Act, to go through all of
their collections. When agencies submitted their timelines, 28
years was, it was much shorter timelines that they told us, yet
it was still eight, ten years estimated, and in many cases,
agencies estimated that it would cost hundreds of thousands or
even millions more than they currently had appropriated to
implement the Act effectively.
Senator Cortez Masto. Thank you. I appreciate that. Thank
you again for this important discussion. I yield my time.
The Chairman. Thank you, Senator Cortez Masto. Senator
Cantwell?
STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
Senator Cantwell. Thank you, Mr. Chairman, and thank you
for holding this important hearing, and to Vice Chair
Murkowski, with 29 federally recognized tribes in the State of
Washington, I guarantee you this issue has come up many times.
We have had sacred sites impacted and obviously the issues of
tribal well-being and sovereignty, just a few years ago, it
seems like.
The Ancient One, the remains of the Ancient One were
repatriated after several decades of investigation and
research, so the different tribes and bands of the Columbia
Plateau could lay them to rest. I don't know how many people
remember this debate. But clearly, there was even at that
moment lots of scientists and lots of differences of opinion
about that.
I also recall visiting burial grounds in Port Angeles,
Washington, where a major DOT project was going in to build a
graving dock, to help with repair of the Hood Canal Bridge.
Literally the early stages of that development was the
discovery of a 2,000-year-old village, Tse-whit-zen, that
literally the construction and the building went on, still went
on for months.
The process failed us. The process did not resolve that
issue. Maybe ultimately, legal fights would have resolved it.
But somehow, we needed a process that would have resolved that
instead of continuing the development on this site, once it was
discovered we were building on top of a 2,000-year-old village,
a major discovery.
So I do want to ask, Dr. Grussing and Ms. Beasley, what
other protections, and to Dr. Worl's point about making sure
that there is a better process to resolving disputes, not just,
oh, maybe we will have a hearing and maybe we won't have a
hearing. And I get the framework of these entities that are
currently involved.
But these issues, particularly now that we have all sorts
of different science involved, are way more complex than the
process that we have today. I think that again, we had very
major disputes about what we at that time referred to that, now
I am saying the Ancient One, but Kennewick Man, and then a lot
of dispute, and then this other instance.
Also, we had a problem with one of our dams, so we had to
draw down the water. And there were then exposed hundreds of
burial sites, all along the Columbia. And how do we protect
them, and how do we use this authority to make sure, without
identifying where they were.
So I want to ask what specific changes, Ms. Worl, Ms.
Beasley, or Ms. Grussing would say that we need to implement
that would help us on elevating the discussion and not
bypassing it? And what to do to protect the locations from
public information if that is so chosen? Whoever wants to
start.
Dr. Grussing. Dr. Worl, would you like to go first?
Senator Cantwell. Yes, Dr. Worl, go ahead, and then we will
go to our other witnesses.
Dr. Worl. Well, as we know, the disputes are just really
lengthy and costly. So I think we really need an assessment and
coming up with some measures as how we can better work together
on this. And consulting and informing tribal members
immediately upon the discovery of any kind of human remains,
that must remain in place.
I am concerned that there may be some changes in the
resolution, in the procedures that are proposed rules, that may
alter that. We need to make sure that the tribes are there
right away, and that we have a say in any kind of inadvertent
discoveries.
Senator Cantwell. Yes. And in the Tse-whit-zen case, the
only avenue that the Lower S'Klallam had was to basically,
well, a lawsuit. We kept saying, this isn't going to end well
for either side. So let's figure out a path to figure out what
to do here.
Ms. Beasley?
Ms. Beasley. Thank you. Again, we believe that the proposed
regulation changes will go a long way toward addressing some of
the challenges with NAGPRA with regard to streamlining the
process, clarifying the rules and responsibilities, removing
unnecessarily burdensome procedures, removing offensive
language and so forth. We estimate that within a few years of
enactment of the proposed rule changes 90 to 95 percent of
responsive collections will be able to move through the
process.
We certainly would be happy to work with the Committee on
technical assistance for any legislative changes that you might
propose. I can tell you that some of the things that came up
during consultation over the summer regarding the proposed rule
that were concerns relate to the definition for Native American
in the statute. Certainly concerns about protecting sensitive
information, and there are a number of other more minor
technical amendments for legislative history that could be
addressed. We would be pleased to work with the Committee.
Senator Cantwell. Thank you. I am out of time, Mr.
Chairman, but if Ms. Grussing either has a quick comment or can
submit something for the record, I would so appreciate it.
Dr. Grussing. I would take a moment if that is okay. A
critical issue here is the recognition of traditional knowledge
and oral tradition as a valid form of knowing. I wanted to note
that in the case of the Ancient One, the Ninth Circuit actually
set really an unfortunate precedent with their choice of some
phrasing. We would point to California NAGPRA law as a better
approach to recognizing this equally valid form of knowledge to
the methods of western science. I think that this outdated
colonial approach to disposition of ancestors is also
retraumatizing, and we can do better.
Senator Cantwell. What was the language in that decision
that was problematic?
Dr. Grussing. Let's see, oral tradition accounts are not
specific, reliable, or relevant enough, because they have been
inevitably changed and context of transmission, because such
traditions include myths that cannot be considered factual,
because the value of such accounts is limited by concerns of
authenticity, reliability, and accuracy, and because the record
as a whole does not show where historical fact ends and mythic
tale begins.
Senator Cantwell. So we should throw out Greek myth, too,
or what? Anyway, we should work on this, Mr. Chairman. Some
people would say, who does this hearing relate to. There are
lots of examples in the State of Washington where a better
process would help us. We appreciate this rich culture and the
oral traditions. I feel so fortunate to have had some of them.
I feel like we should even be doing more.
But anyway, let's work on it, I am happy to work with the
Committee as the Committee moves forward. Thank you.
The Chairman. Thank you very much, Senator Cantwell.
Director Beasley, you testified that a greater percentage
of collections have been repatriated to Hawaii and Alaska than
have been completed in the lower 48. I don't want to get you in
trouble by making you guess, but what accounts for the
difference?
Ms. Beasley. The variation is largely a result of the
relationship between cultural affiliation and geographical
association under NAGPRA. So you are correct, 97 percent of
collections----
The Chairman. Say that again in English.
Ms. Beasley. Yes, sir. It has to do with the relationship
between cultural affiliation and geographical location. So if
you consider that in many parts of the lower 48, Indian tribes
were forcibly removed from their ancestral homelands to new
locations. So they were, as Dr. Worl so eloquently spoke to,
effectively taken away from those physical locations. That is
not so much the case in Alaska and Hawaii, where those cultural
affiliations and geographical connections remain much more
intact.
The Chairman. So that theory would be relatively easy to
test, because there are places in the lower 48 where tribes
were not geographically displaced, and therefore, they would
have a higher rate of repatriation? Is that your experience?
Ms. Beasley. I don't know if I could speak to the specifics
of that. At this time we can certainly look into that and
report back to you. But revisions to the regulations that we
are proposing would require museums and Federal agencies to
complete the regulatory process, and would require them to
consider both cultural and geographical affiliation. Again,
within a few years of finalizing the regulations, we would
expect that 90 to 95 percent of collections could complete the
process. That would certainly be a much better statistic, and
more along the lines of what we see in Hawaii and in Alaska.
The Chairman. Got it. Okay, thank you.
Chair Lindsey, thank you for taking the time. What
qualifications do you think a Native Hawaiian organization
should have in order to engage in the work under the NAGPRA
statute? I don't want to use a legal term here, but who is
legitimate in doing this work? How do you attain legitimacy? Is
it ancestral knowledge? Is it lineage and genealogy? Is it
geographic location? Is it study? Help me to understand how we
determine who helps us to implement this law.
Ms. Lindsey. Thank you, Senator. Under NAGPRA, a Native
Hawaiian Organization or an NHO is defined as any organization
that serves the interests of Native Hawaiians, and has a
primary and stated purpose of provision of services to Native
Hawaiians, and has expertise in Native Hawaiian affairs. These
NHOs are able to make claims and consult on repatriation
matters.
However, this definition does not require that these NHOs
actually consist of only Native Hawaiians. This has been
problematic in the past, as OHA has witnessed a museum and
recreational clubs trying to claim NHO status. As indicated in
our written testimony, this could be addressed by amending the
NHO definition to require that NHOs have Native Hawaiians in
substantive policy making decisions.
The Chairman. Thank you very much. I would like to work
with you, Chair Lindsey, on this. And we will work with our
Committee staff as well. The way the statute is written, it
invites two people to set up a (c)(3) and represent themselves
as representing Native people. And maybe they do. But there has
to be a vetting process that has legitimacy both under
statutory law but maybe more meaningfully in the culture.
It is a tough thing, because you want to be as expansive
and inclusive in a statute as possible. But if it allows two
people to claim to have the legitimacy that they may or may not
have, it becomes very difficult, especially for the Federal
Government, to sort out who is legit and who is not.
It is certainly not my job, and I wouldn't imagine Director
Beasley wants that responsibility. But it is something we have
to sort out as a community in consultation with Chair Lindsey
and others who have a stake and deep knowledge in this area.
Dr. Grussing, tribes are attempting to apply NAGPRA to
repatriate human remains found in the cemeteries at Indian
boarding schools, including Carlisle Industrial School in
Pennsylvania. I am wondering if you can explain how NAGPRA
would work in this context.
Dr. Grussing. Thank you for that question, Mr. Chairman.
We are so grateful for the light that is being shown on
this issue after so long. I actually have my orange on today in
solidarity because every child matters.
NATHPO has addressed this question in our comments on the
Secretary of the Interior's boarding school initiative. We will
submit that for the hearing record.
To summarize, though, the excavation of Native American
human remains from any Federal lands requires compliance with
NAGPRA. That means the Federal agency must comply with lineal
descendants and affiliated Indian tribes before excavation,
including a plan of action. The excavation itself must comply
with the Archaeological Resources Protection Act. Control of
the remains would be as specific in Section 3 of NAGPRA.
Our understanding is that the Carlisle Indian Industrial
School is located on Federal land. During the DOI boarding
school consultations, we heard extensively from tribes that the
Army is claiming exemption from NAGPRA requirements at this
site, but we are not aware of any basis for that claim.
The Chairman. Thank you very much.
Director Beasley, we all know that yesterday, Interior
announced the appointment of a full-time civil penalties
investigator. Of course, that is good news.
The question is, what is the exact number of allegations
related to NAGPRA compliance that NPS has received? Is there a
backlog? Given that we haven't had a full-time investigator
here, is this in response to an understanding that we are
behind the eight ball, or where are we? If you don't know the
numbers off the top of your head, you can consider this a
formal request to get us a status report on the backlog of
complaints or investigations.
Ms. Beasley. Thank you, Mr. Chairman. I don't have the
exact numbers before me. But we will certainly follow up with
you for the record on that matter.
Hiring a full-time civil investigator was a recognition of
the importance of that specific role and responsibility that we
have. We were also looking ahead to, as we move forward with
these proposed regulatory changes, we would anticipate an
increase in civil penalty investigations. So it certainly, I
think, is evidence of the degree to which we take that role and
responsibility very seriously. We will certainly follow up with
more specifics about where we are.
The Chairman. Just to put a fine point on it, there are two
ways to do this. They are both legitimate. One is, because it
is important, and it is certainly worthy of a full-time person,
or of ten, right? That is number one. Number two could be that
we are actually sitting on a backlog and we can't even
investigate them properly. I am not asking you to give me some
number, but is there a backlog?
Ms. Beasley. Again, I am not sure I am prepared to answer
that question directly and specifically. We will follow up with
you after the hearing.
The Chairman. That is fine. I will let you off the hook
here if when you give me your answer for the record, I get a
yes or a no to the ``is there a backlog'' question. Is that
fair?
Ms. Beasley. Fair enough.
The Chairman. Thank you.
Vice Chair Murkowski.
Senator Murkowski. Thank you, Mr. Chairman. This has been
an important discussion this afternoon. I know that we are in a
series of votes, so we are not going to probably have as much
input from other colleagues on this. But I would like to think
that there is going to be questions that are submitted for the
record as well.
Ms. Beasley, I want to ask about some of the things that I
mentioned in my opening statement about the situation with
regard to these pending actions on the individual remains. I
indicated that, this is according to your department, there are
still over 400 Native American individuals housed in 26 museums
or Federal agencies pending consultation and notification. Can
you give me an update on where things stand with pending
actions related to the 406 individual remains? What is the
update?
Ms. Beasley. Yes, ma'am, thank you for your question. The
national NAGPRA program has really detailed information on the
status, and we would be pleased to follow up with you after the
hearing to provide you with that specific information. I can
tell you that the National Park Service recently published
notices for repatriation of Alaskan ancestors from museums in
New Jersey, Michigan, and California.
I would also share that in 2020, we awarded an over $50,000
grant to the Alutiiq museum in conjunction with the tribal
coalition specifically to support research and repatriation
requests for the 20 or 30 plus museums across the Country that
are holding NAGPRA-eligible Alutiiq ancestors and cultural
objects.
Senator Murkowski. So, according, again, to the Department,
since NAGPRA was enacted, apparently only 21 percent of museums
subject to the Act have resolved all Native American human
remains that are under their control. Is it accurate, then, to
say that less than one-quarter of all the museums subject to
NAGPRA are complying with the law? Or is this an accurate way
to interpret what that 21 percent means?
Ms. Beasley. That is a great question. As I mentioned in my
testimony, and as you note, after plus years, less than half of
the Native American ancestors that are in collections have been
returned to their traditional caretakers, largely due to
identification of those ancestors are culturally
unidentifiable. So museums and Federal agencies still wield a
significant amount of power in determining what will be
repatriated.
We hope that this imbalance can be corrected through the
regulatory changes that we are proposing. And we hope that the
Congress will support that effort by affirming in the hearing
record that the purpose of NAGPRA is repatriation.
Senator Murkowski. Repatriation, and returning their
remains with the respect and dignity that should be afforded,
absolutely.
One final question for you, Director Beasley. This is what
we have heard from the Native village of Chenega. They have
written to the Department expressing some concern over some of
the changes to NAGPRA that the Park Service is contemplating.
They are worried that the effort to update and simplify notice
procedures for discovery will result in less participation by
impacted tribal communities. I think an overall concern that
you are giving greater discretion in the hands of Federal
officials to notify a tribe. It goes to what Dr. Worl was
saying there, in terms of being able to be consulted right
away.
Has the Department responded to the concerns that have been
raised by Chenega specifically?
Ms. Beasley. So I want to emphasize that the Department is
committed to strengthening, to the maximum extent possible, the
requirements for consultation with Indian tribes, Alaska Native
villages, and Native Hawaiian organizations on any discovery or
excavation on Federal lands. The revisions to the regulations
that would streamline the process and make clear what the steps
are for Federal agencies and Federal land managers should
assist both Indian tribes and Federal agencies through the
process.
To answer your question specifically, the Department does
plan on publishing direct responses to all the comments that we
have received from Indian tribes and Native Hawaiian
organizations during consultation, including those that were
submitted by Chenega. We hope that Chenega and other Alaska
Native villages and corporations and organizations will provide
additional feedback and actively participate in consultation
once the proposed rule goes to publication.
Senator Murkowski. Can I ask Dr. Worl to comment on that?
Because what I am hearing here is that yes, yes, the Native
village of Chenega will be consulted, but it will be after a
period of time within which, for instance, Park Service, has
had, they have been storing the remains or the artifacts.
So I hear what you are saying, but I want to make sure that
I hear Dr. Worl correctly too, that the concern is that there
is a lag and there is discretion with the agency about when
then to bring in the tribe.
Dr. Worl. Thank you, Senator. I would like to refer you to
subsections 10.5(b) and (c). These sections give the impression
that all or most discoveries occur as a result of intentional
ground disturbances. These sections must also acknowledge and
consider that often discoveries result from unintentional
ground disturbances caused by natural forces, storms, and
floods, and unanticipated outcomes of human activity. For
example, cleaning out culverts, or the discovery of illegal and
unauthorized excavations of Indian graves.
We strongly object to the removal of the requirement by the
Federal officials to notify and initiate consultation with any
known lineal descendant and likely culturally affiliated Indian
tribe or Native Hawaiian organization within three working days
of receipt of a written confirmation of discovery. So that is
our reading of it, that there is that ambiguity. I think it
needs to be clarified, and we need to ensure that there is
immediate consultation.
But the section in our opinion gives this other impression.
Senator Murkowski. Thank you for clarifying that, Dr. Worl.
I appreciate that.
Mr. Chairman, I have no further questions other than to
thank all of the witnesses, and contributions that they have
made. Very important. I look forward to further work from the
Committee here.
The Chairman. I am an extraordinarily lucky person, but
among the ways in which I am lucky is that as chairman, I get
to work with Lisa Murkowski. It really is a pleasure to work
with you and your staff. Thank you very much.
Dr. Ortiz, I am going to have a number of questions for the
record for a number of the witnesses. But I will just flag
this, because I think it is really important as we consider any
legislative work to do on a bipartisan basis. If you will take
this for the record, are there any additional aspects of NAGPRA
that GAO can help us to address. If you will take that for the
record, I would appreciate it.
If there are no more questions for our witnesses, members
may also submit follow-up written questions for the record. The
hearing record will be open for two weeks. I want to thank all
the witnesses for their time and their testimony.
This hearing is adjourned.
[Whereupon, at 3:34 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of Mark Mitchell, Chairman, All Pueblo Council of
Governors
My name is Mark Mitchell, former Governor of the Pueblo of Tesuque
and Chairman of the All Pueblo Council of Governors (APCG). The APCG
represents the 20 Pueblo Nations of New Mexico and Texas. Each Pueblo
exercises its own Sovereign authority to govern its affairs. The first
recorded convening of this council dates back to 1598.
Each generation of Pueblo leaders have utilized this body to
collectively take action to address impositions and threats to our
cultures, languages, and traditions. Pueblo leadership has identified
the inhumane removal of our ancestors and their associated cultural
items from their final resting places as acts of violence and crimes
against humanity. Pueblo leadership also recognizes that many of our
items of cultural patrimony and sacred objects-known to us as living
beings-are taken from our communities and trafficked domestically and
abroad.
On their behalf, and in the interest of protecting our foremothers
and forefathers, cultural ways of life, and present and future
generations, I express my appreciation for the Senate Committee on
Indian Affairs' Oversight Hearing titled ``The Long Journey Home:
Advancing the Native American Graves Protection and Repatriation Act's
Promise After 30 Years of Practice.'' It is necessary that the Congress
strengthen the Native American Graves Protection and Repatriation Act
(NAGPRA).
We look forward to the opportunity to continue to work with the
Committee to strengthen this historic and meaningful legislation. One
important step in the right direction would be passage of the Safeguard
Tribal Objects of Patrimony (STOP) Act of 2021, H.R. 2930 and S. 1471,
now before the Senate after House passage. However, we also look
forward to partnering with the Committee on designing and advocating
for comprehensive NAGPRA amendments to improve its functioning for the
benefit of all Tribal Nations.
______
Prepared Statement of Theresa Pasqual, Tribal Historic Preservation
Officer, Pueblo of Acoma
I. Pueblo Calls on Committee to Pursue NAGPRA Amendments
The Pueblo appreciates the opportunity to present information to
the Committee on the important topic of strengthening the Native
American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C.
3001-3013, 18 U.S.C. 1170. The Pueblo has prioritized protecting our
tribal cultural heritage items and our sacred places, and through this
work we have developed expertise in these areas. Indeed, we have
championed the Safeguard Tribal Objects of Patrimony (STOP) Act of
2021, H.R. 2930 and S. 1471, to fill gaps in existing laws that we
experience directly.
We have seen firsthand that NAGPRA is an important tool for
bringing our ancestors and cultural items home. NAGPRA serves as an
example of the federal government taking concrete actions to honor its
trust obligations to Tribal Nations in the context of cultural
preservation and revitalization.
But we have also seen that NAGPRA has many shortcomings and would
benefit from statutory amendments to strengthen and clarify its scope
and legal effects. Therefore, we hope that this oversight hearing is
the first of many conversations between the Committee, Tribal Nations,
and other experts regarding how to strengthen NAGPRA to improve its
functioning. We believe these conversations can lead to concrete
changes to NAGPRA that will significantly benefit Indian Country.
II. Examples of Needed NAGPRA Amendments
There are many areas in which NAGPRA's statutory language could be
strengthened to more fully and robustly protect tribal cultural
heritage items. Below we have provided some examples of areas for
improvement. However, we encourage the Committee to engage in further
tribal consultation and information gathering to gain a more
comprehensive understanding of potential beneficial statutory changes.
Cultural Affiliation
NAGPRA utilizes the phrase ``cultural affiliation'' in important
and potentially gatekeeping ways. ``Cultural affiliation'' plays a
significant role in determining who will receive an ancestor or
cultural item upon repatriation from a museum or federal agency, 25
U.S.C. 3005(a), or upon disposition after removal from federal or
tribal lands, 25 U.S.C. 3002(a)(2). ``Cultural affiliation'' also
shapes how items are identified and how Tribal Nations receive notice
of their inclusion in museums' and federal agencies' inventories, 25
U.S.C. 3003, and summaries, 25 U.S.C. 3004. Importantly, cultural
items that museums and federal agencies deem to have a cultural
affiliation are subject to NAGPRA's repatriation process. See 25 U.S.C.
3005.
One of NAGPRA's most serious weaknesses is the way a ``cultural
affiliation'' finding or lack thereof can derail a repatriation.
Museums and federal agencies use NAGPRA's language as currently drafted
to conclude that a cultural item lacks a cultural affiliation such that
the duty to repatriate is not triggered. See 25 U.S.C. 3005(a). When
coupled with NAGPRA's lack of sufficient oversight regarding such
cultural affiliation determinations, this is a major loophole in
NAGPRA's implementation.
One potential solution is strengthening NAPGRA to clarify that a
museum or federal agency's legal obligation to repatriate, 25 U.S.C.
3005(a), any tribal cultural heritage item is triggered if that item
qualifies as a ``cultural item'' under NAGPRA, 25 U.S.C. 3001(3),
especially in the context of Native American ancestors and their
associated funerary objects. Determining which tribal recipient is most
closely culturally affiliated for purposes of receiving that cultural
item should be a separate question.
Further, decisionmaking authority regarding NAGPRA's application to
a particular item and its repatriation should be placed in the hands of
Tribal Nations, the Review Committee, and the Department of the
Interior rather than in the hands of museums and federal agencies.
Determinations of whether a tribal cultural heritage item is a ``Native
American'' ``cultural item'' covered by NAGPRA and its ``cultural
affiliation'' should be made based on all available evidence, including
Tribal Nations' expertise. Where museums and federal agencies are
permitted any decisionmaking authority, their decisions should be
subject to review before the Review Committee, the Department of the
Interior, and the courts, and Tribal Nations must be able to initiate
such review.
Provenance Requirements
Although NAGPRA prohibits trafficking of ancestors and cultural
items, 18 U.S.C. 1170, these prohibitions only apply to ancestors for
whom the offender lacks a right of possession, 18 U.S.C. 1170(a), and
to cultural items obtained in violation of NAGPRA, 18 U.S.C. 1170(b).
In practice, this usually means prosecution is not possible unless the
federal government, in conjunction with the Tribal Nation, can
demonstrate the cultural item was removed from tribal or federal land
after NAGPRA's 1990 enactment date. See 25 U.S.C. 3002(a), (c). Thus,
without establishing these provenance requirements, an item that has
enough cultural significance to qualify as a ``cultural item'' under
NAGPRA, 25 U.S.C. 3001(3), still cannot be protected from
trafficking. \1\ NAGPRA's trafficking prohibitions should apply to all
cultural items regardless of the date they were removed or the land
from which they were obtained.
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\1\ The Archaeological Resources Protection Act (ARPA) has similar
provenance issues. See 16 U.S.C. 470ee(b)(1); see also 16 U.S.C.
470ee(a), (e). One half-measure to fixing the ARPA provenance issues is
adding ``tribal law'' to amend its provisions stating that ARPA
prohibits trafficking of ``archaeological resources,'' see 16 U.S.C.
470bb(1), that were removed before ARPA was enacted but in violation of
federal or state law in place at the time, 16 U.S.C. 470ee(b)(2),
(c).
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Separately, NAGPRA should be amended to make clear that museums'
and federal agencies' inventory, summary, and repatriation obligations,
25 U.S.C. 3003-05, are not limited by any provenance requirements,
as some have wrongly read provenance requirements into those
provisions.
Reinterment on Federal Lands
The Pueblo seeks amendments to NAGPRA that direct federal agencies
to take possession of ancestors and other cultural items for
reinterment at Tribal Nations' requests. Many Tribal Nations seek
reinterment locations that are as close as possible to the location
from which an ancestor or cultural item was taken, and public lands are
often the best option. However, many federal agencies refuse to accept
ancestors and other cultural items for reinterment when they cannot be
proven to have come from the boundaries of the particular area of
federal lands. NAGPRA should be amended to require such reinterment.
Tribal Nation Funding
The Pueblo recommends additional funding for Tribal Nations and
others to more fully implement NAGPRA. While NAGPRA currently
authorizes grants to Tribal Nations for the purpose of assisting in
repatriations, 25 U.S.C. 3008(a), funding levels have not been
sufficient, and such funds often focus on museum repatriations rather
than other aspects of NAGPRA enforcement. For example, additional
funding could be used to find solutions to the issue of finding a
proper location for reinterment, discussed above, by supporting
discussions, planning, mapping, research, and identification of
suitable lands.
International Trafficking
The current federal laws often used to protect tribal cultural
heritage items from trafficking, including NAGPRA and the
Archaeological Resources Protection Act (ARPA), 16 U.S.C. 470aa-
470mm, currently leave many tribal cultural heritage items unprotected
from export and trafficking abroad. The Pueblos in particular have seen
many of our sacred tribal cultural heritage items set for auction
overseas and out of our reach, and it is for this reason that the
Pueblo has championed the STOP Act. The STOP Act aims to stop the
export and facilitate the international repatriation of tribal cultural
heritage items already protected under these federal laws. The STOP Act
passed the House with bipartisan support in December 2021 and is now
before the Senate awaiting passage. A very similar version of the STOP
Act passed the Senate in 2020 via unanimous consent. We call on the
Committee to secure passage of the bill as soon as possible.
Enforcement
Stricter enforcement of NAGPRA and stricter penalties are necessary
to ensure compliance with NAGPRA. The STOP Act would increase NAGPRA
trafficking penalties. NAGPRA's provisions authorizing the Secretary of
the Interior to assess civil penalties against museums and federal
agencies for violations of their NAGPRA obligations should also be
strengthened. See 25 U.S.C. 3007. Further, NAGPRA must provide Tribal
Nations with remedies whereby we can ensure enforcement of NAGPRA-as
protecting our own tribal cultural heritage items is ultimately our
responsibility.
Thank you for the Committee's attention, and we urge you to
continue this important work. We hope to continue dialogue with you
regarding ways to strengthen NAGPRA.
______
Prepared Statement of the Association on American Indian Affairs
Dear Chair Schatz and Vice Chair Murkowski,
We are so grateful for your attention to the Native American Graves
Protection and Repatriation Act (NAGPRA). While the Association on
American Indian Affairs is not a ``Tribe'' to which the government owes
a trust relationship to--and we in no way wish to co-opt this process--
the Association feels strongly that our collaborative work with Native
Nations and expertise must be shared with you fully. The Association is
the oldest non-profit serving Indian Country, and is celebrating our
100 years of service, since 1922! The Association has been a leading
organization protecting Sacred Places, and cultural and religious
practices since its founding. Regarding NAGPRA and our repatriation
efforts, we have devoted significant resources analyzing and evaluating
the effectiveness of the Act as well as its regulations, including how
the Act can be improved to better reflect Congress' intent.
The Association's work in repatriation and protecting the Sacred is
led by our grassroots efforts with Tribal practitioners, museums,
academics, lawyers, artists, federal agencies and others on the ground.
The Association's Annual Repatriation Conference brings practitioners
and specialists together from diverse backgrounds and provides training
and technical assistance to Native Nations and institutions. The
Association's 7th Annual Repatriation Conference was held virtually
over three weeks in November 2021 with 700 participants. This year, the
8th Annual Repatriation Conference will be a hybrid event held October
11, 12 & 13.
The Association also has a Repatriation Working Group, made up of
diverse experts involved in repatriation efforts, and a Tribal Partners
Working Group, a closed group that provides a safe space to discuss
cultural and spiritual, as well as practical issues regarding
repatriation and protecting the Sacred. These grassroots groups support
the direction of our organization's activities, advocacy and training
regarding NAGPRA, and other matters of domestic and international
repatriation, and protection of Sacred Places.
The Association began its review of potential amendments to NAGPRA
most recently starting in 2018 with its Repatriation Working Group and
other partners. The RWG went line-by-line developing potential
amendments that are based in our experience implementing the Act and
its regulations. Hand in hand with Tribal and museum practitioners, we
have also developed strong positions on revisions to the NAGPRA
regulations. Through this work, the Association has developed
recommendations about whether the problems with NAGPRA have come from
the Act itself, or from the current regulations.
It is clear to us that the biggest problem with NAGPRA compliance
comes from the language of the current regulations. The Act continues
to be a strong human rights statute--with the main problem that those
in control of recommending and developing the regulations that are
currently in force created complicated bureaucratic processes that has
allowed institutions to get away with 30 years of refusing to
repatriate and properly consult with Native Nations (or Tribes) and
Native Hawaiian Organizations (NHOs).
We are not providing full details of our recommendations--instead,
we are providing a summarized version of these amendments that will
hopefully lead to further discussion. Based on the lessons learned over
31 years of NAGPRA, there are four categories of amendments that are
needed to align the Act to Congress' intent. First, there are several
definitions in 25 U.S.C. 3001 that require amendment, and a couple
other definitions that should be included to improve implementation.
Second, the Act must improve compliance and enforcement, with
amendments within the Act and its criminal provisions. Third, the
jurisdiction of the Act must be expanded to apply regardless of where
stolen and looted Ancestors and cultural items are held or are
discovered. Finally, amendments to the Act could be included to support
repatriation of children and others that are in marked or unmarked
graves of boarding schools and other institutions so that lineal
descendants and Native Nations can bring their stolen Ancestors home
for reburial.
The following recommendations are summarized for brevity and follow
the framework of the Act.
25 USC 3001--Definitions
``Cultural Items'' should be defined as understood by the
affiliated Tribe or NHO and not by the museum or federal agency. In
other words, the Tribe or NHO understanding of whether an item fits in
a particular category should be presumed to be correct as the Tribe or
NHO is the primary expert of their own cultural heritage.
``Funerary object'' is defined by two separate definitions--one for
associated funerary objects and one for unassociated funerary objects.
This has caused confusion for institutions with split collections whose
funerary objects have been split away from their Ancestors. The
definition of unassociated funerary object has also been unworkable for
other significant reasons. ``Unassociated funerary objects'' must be
connected to a specific Ancestor or burial site, which has prevented
these items from being repatriated. This information is often unknown
because of the poor record-keeping of many institutions. However,
Tribes understand the types of items that were included in their
burials. Unfortunately, graves have been disturbed for the very purpose
of removing funerary objects to be sold and exhibited as ``art''
because these items have been more valuable and easier to traffic than
human remains. Tribes and institutions should not have to connect
funerary objects to specific Ancestors or known burial sites. All
funerary objects should be treated the same, with the Tribe or NHO as
the primary expert to categorize the cultural item correctly.
``Indian Tribe.'' Native American Ancestors and cultural items have
been looted and unconscionably taken over the course of colonial
history before there was a class of Tribes referred to as ``federally
recognized Tribes.'' The Act's definition of ``Indian Tribe'' has been
used inconsistently in the past by regulators, sometimes including
state recognized Tribes that are eligible for special programs, and
sometimes restricted to federally recognized Tribes alone. The
definition should clearly state that this remedial human rights Act
applies to federal and state recognized Tribes, as state Tribes are
``eligible for the special programs and services provided by the United
States to Indians because of their status as Indians.'' The Act already
applies to lineal descendants and Native Hawaiian organizations, which
are not federally recognized Tribes. It is illogical that NAGPRA would
not be available as a remedy to state recognized Tribes and Indigenous
Peoples who can prove descendancy or ownership.
``Native American'' should be amended to include ``or was'':
``means of, or relating to, a tribe, people, or culture that is or was
indigenous to the United States.'' This amendment is required because
of the faulty reasoning of the Ninth Circuit Court of Appeals in the
Kennewick Man case.
``Consultation'' is not defined in the Act though it is a main
tenet of this work. Given the absolute remedial, restorative purpose of
NAGPRA, consultation must be defined differently from other contexts.
Consultation, for NAGPRA purposes, must be defined to require obtaining
the consent of Tribes or NHOs and that, unless consultation shows
otherwise, that the Ancestor and cultural items are viewed with the
presumption of Tribal or NHO ownership. \1\ Consultation must be more
than providing notice, considering that the Act's language recognizes
that the institution must prove it has a ``right of possession.'' (In
other words, the Act's language presumes repatriation should occur and
the only exception is when the institution can prove it has a ``right
of possession.'')
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\1\ Please note that the term ``ownership'' does not truly define
how Tribes and NHOs care for Ancestors, their burial belongings and
sacred and cultural patrimony. In fact, the term ``ownership'' can be
offensive to our values. This term is being used in our comments to
best translate a western legal concept. Instead of ownership, we would
prefer terms such as ``rightful caretaker.''
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``Possession or Control'' is used throughout the Act but not
defined, though the phrase is significant in the declaration of legal
responsibilities under the Act. \2\ Whether an institution has
possession or control, it is obligated to comply with NAGPRA.
``Possession or control'' in NAGPRA does not equate to a legal
interest, unless the institution can prove that it has a ``right of
possession'' as clearly defined in the Act. This is one of the most
important concepts that drives the Act's successful implementation!
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\2\ For example: ``Each Federal agency and each museum which has
possession or control over holdings or collections of Native American
human remains and associated funerary objects shall compile an
inventory.'', 25 U.S.C. 3003(a) (emphasis added).
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The regulations, as well as guidance provided by different federal
agency leadership over time, has defined ``control'' and ``possession''
separately, and includes a type of legal interest. To illustrate this,
the meaning of ``right of possession'' used in the Act must be
understood. The Act provides a one-and-only exception to repatriation.
If an institution can prove a ``right of possession'' then repatriation
shall not occur:
``Right of possession'' means possession obtained with the
voluntary consent of an individual or group that had authority
of alienation. .. The original acquisition of Native American
human remains and associated funerary objects which were
excavated, exhumed, or otherwise obtained with full knowledge
and consent of the next of kin or the official governing body
of the appropriate culturally affiliated Indian tribe or Native
Hawaiian organization is deemed to give right of possession to
those remains.
25 U.S.C. 3001(13). Thus, the Act establishes that agencies and
museums shall not have any rightful legal interest to Ancestors and
cultural items unless they can prove an authoritative transfer from a
Tribe or NHO to the institution at the time the item was taken.
Thus, the Act's use of the phrase ``possession or control'' does
not and cannot create a legal interest that the Act itself forbids and
that the agency or museum has not proven. Institutions justify using
Ancestors and cultural items anyway they wish, permitting them to
exhibit, research (even with federal monies) and loan Ancestors and
cultural items to even international institutions without first
fulfilling their NAGPRA responsibilities for repatriation and
disposition--though they do not have a ``right of possession.''
Agencies and museums do not have current legal rights in cultural items
without this determination--to the contrary, they have legal duties to
comply with NAGPRA and restore rightful ownership to Tribes and NHOs.
We recommend then that ``possession or control'' be defined
together as a single term or phrase--as they appear in the Act--as a
type of naked possession or control and treated like a bailment, albeit
one unintended by the rightful owners (Tribes and NHOs). In that
context, legal rights never transfer from institution to Tribe, but are
instead acknowledged and restored, and the entity with temporary and
naked ``possession or control'' has a duty to safeguard and restore
items to the proper owners. The NAGPRA process, through consultation,
affiliation, notice, and repatriation would then acknowledge (instead
of transferring a legal interest that the agency or museum does not
have) the Tribe(s) or NHO(s) proper and legal ownership.
25 USC 3002. Ownership: An opportunity to rectify the return of
children from Boarding Schools
The Act allows for the removal of Ancestors and their burial
belongings from federal or Tribal lands. This process may also be used
to disinter and repatriate children from marked and unmarked burials
from past or present Boarding School and other institutional
properties. Federal agencies, such as the U.S. Army, have denied that
NAGPRA applies to excavate and return children from marked and unmarked
boarding school cemeteries.
Rather than following NAGPRA, the U.S. Army chose to use their own
internal procedures, applicable to soldiers' graves. Those regulations,
adopted without regard to the fiduciary obligations central to NAGPRA
and without Tribal consultation, only allow for a lineal descendant to
disinter their Ancestor (and not an affiliated Native Nation or NHO),
and further burdens the process by requiring affidavits and other
information not required by NAGPRA. The Army asserts that the Thorpe v.
Borough of Jim Thorpe case from the Third Circuit Court of Appeals
prevents the application of NAGPRA to disinter a known grave or
cemetery of a Native American (at least in that circuit). The Army's
argument is misplaced. The judge in the that case declined to apply the
repatriation provisions of NAGPRA, after determining that the city was
not a museum--and that the federal nexus was too attenuated to invoke
the NAGPRA repatriation remedy. The court did not review the graves
protection provisions, section 3002. As an agency of the United States,
the Army explicitly bears the federal NAGPRA responsibility. The Army
must act with respect to the graves protection provisions intended to
address children's marked and unmarked graves located on lands that
housed U.S. funded boarding schools. Those graves protections
provisions, rather than the repatriation provisions construed in
Thorpe, apply to remedy hundreds of years of wrongful takings of Native
American children--and to give them a proper burial.
Moreover, to support the excavation and return of children from
boarding schools and other institutions, the application of NAGPRA
should apply beyond federal and Tribal lands. There are many
environmental statutes that apply nationally regardless of ownership of
land, such as the Endangered Species Act, the Bald and Golden Eagle
Protection Act, the Clean Water Act and the Clean Air Act. The only way
to prevent a checkerboarded regulatory scheme and allow for graves
protection and repatriation in line with Congress stated priorities in
NAGPRA and other laws, is to require the application of NAGPRA to all
lands and hands that hold Native burials and cultural heritage.
25 USC 3003. Inventory for Human Remains and Associated Funerary
Objects
Subsection(b)(2) of this provision states that inventories ``shall
not be construed to be an authorization for, the initiation of new
scientific studies of such remains and associated funerary objects or
other means of acquiring or preserving additional scientific
information from such remains and objects.'' As expressed above, an
institution must prove it has a ``right of possession.'' Yet, this
permissive omission of outright banning research has given many
institutions enough legal room to continue to perform destructive
research on Ancestors and cultural items in which they have no ``right
of possession.'' How can an institution perform research on collections
that it does not own, and where the ``right of possession'' has not
been determined? The Act should be revised to clearly ban new research
unless ``right of possession'' is established by a burden of proof that
is higher than a preponderance of the evidence, or unless, pursuant to
3005(b), items are indispensable for completion of a specific
scientific study of major benefit to the United States.
If a Tribe and an institution mutually wish to perform more
comprehensive investigations about Ancestors or cultural items, NAGPRA
does not prevent that effort, see 25 U.S.C. 3009, but it most
certainly does not require it and should be banned unless an
institution has the ``right of possession'' of the Ancestor.
25 USC 3004. Summary for Unassociated Funerary Objects, Sacred
Objects and Cultural Patrimony
As written, the Act allows the institution to determine whether the
objects in its collections are ``cultural items'' pursuant to the Act.
As previously stated, institutions often do not have the expertise to
determine this, without consultation with the potentially affiliated
Tribe or NHO. However, the language of the Act places the determination
of whether an object is a ``cultural item'' solely in the hands of the
institution.
Summaries should require an institution to provide a catalogue or
summary of its Native American collection and allow the Tribe or NHO to
determine what items fit which categories, and then proceed with
repatriation. After all, a Tribe or NHO has the primary expertise over
their own cultural heritage.
25 USC 3005. Repatriation
This provision of the Act, particularly subsection (a)(4), has
caused a majority of problems and has fed into the large numbers of
``culturally unidentifiable'' inventories. First, this subsection has
been used by institutions to demand that Tribes and NHOs prove by a
preponderance of the evidence that Ancestors and cultural items are
affiliated. However, this section only applies where there is no
information to affiliate. Any successful institution or Tribal
practitioner will tell you that you only need geographic evidence to
establish affiliation under the law.
Institutions have used (a)(4) even where there is enough
information to affiliate in order to delay repatriation and burden the
Tribe to gather more information--including demands for sacred
knowledge that is not required to show affiliation--and even to get the
Tribe to perform more research. This provision has been financially, as
well as emotionally and spiritually, costly for Tribes and NHOs.
The provision should be clarified to limit inclusion of Ancestors
and cultural items on the CUI list only where there is no information
available, including geographical, kinship, biological, archaeological,
anthropological, linguistic, folkloric, oral traditional, historical,
or other relevant information or expert opinion, or no Tribe or NHO
that seeks to affiliate and repatriate.
25 USC 3007. Penalty
Subsection (a) should be amended to replace ``may'' with ``shall''
in order to improve outcomes that incentivize compliance with the Act.
``Any museum that fails to comply with the requirements of this chapter
may shall be assessed a civil penalty. . .'' Moreover, any penalty
assessed should go back into the civil penalty program to fund this
investigative work and increase efficient and effective compliance with
the Act.
Subsection (b)(1) must also be revised to remove the requirement
that penalties be assessed according to the ``the archaeological,
historical, or commercial value of the item involved.'' This has been
viewed as offensive by many Native Nations and ignores the cultural and
spiritual value and the harm suffered by the Native Nation from the
refusal of the institution to comply with the law.
25 USC 3008. Grants
The language of the Act gives the Secretary authorization to
provide grants to Tribes and NHOs for ``repatriation,'' and grants to
museums for completing inventories. The language should more generally
allow grants to Tribes, NHOs and museums for all efforts under sections
3003, 3004 and 3005 of the Act. This will support Tribes and museums to
collaborate for funding to support these efforts--instead of needlessly
creating two different buckets of funding and relegates Tribes to seek
funding for only the act of repatriation.
18 USC 1170 Illegal trafficking in Native American human remains and
cultural items
The current version of the Safeguarding Tribal Objects of Patrimony
Act before the Senate and House amends the illegal trafficking
provision of NAGPRA by increasing penalties for violations of NAGPRA.
However, this amendment will not offer the deterrence necessary to stop
illegal trafficking. It could, however, provide stronger deterrence
against trafficking and improper export if the intent requirement was
amended.
Currently, 18 USC 1170 requires an individual to ``know'' that
the act is illegal: ``Whomever knowingly sells. . .''. This intent
requirement is difficult to prove, and therefore a higher criminal
penalty will not prove a deterrence effect for the trafficking of
cultural items. Revising the trafficking provision to include a general
level of intent, such as merely an intent to sell (instead of the
knowledge that the selling is illegal), as well as no requirement of
intent (strict liability), would easily strengthen Congress' efforts to
end trafficking. These lower or no intent crimes could provide
misdemeanor or 1-2 year penalties, depending on scope of the crime, and
would have a higher deterrence effect on trafficking than merely
increasing the penalty amount.
Thank you for this opportunity to provide comments.
______
Prepared Statement of the Society for American Archaeology
The Society for American Archaeology (SAA) appreciates this
opportunity to provide the following comments on the current state of
the implementation of NAGPRA. The SAA has long been involved in the
issue of repatriation of Native American ancestors and cultural items
to lineal descendants and culturally affiliated Indian Tribes and
Native Hawaiian organizations. The SAA was one of the leading
organizations at the forefront of the drafting and passage of the
statute in 1990, and has remained deeply involved in its application
and enforcement ever since.
The SAA is an international organization that, since its founding
in 1934, has been dedicated to research about and interpretation and
protection of the archaeological heritage of the Americas. With nearly
7,000 members, the SAA represents professional and avocational
archaeologists, archaeology students in colleges and universities, and
archaeologists working at tribal agencies, museums, government
agencies, and the private sector. The SAA has members throughout the
United States, as well as in many nations around the world.
In general, while substantial progress has been made under NAGPRA,
implementation of the law has taken longer than was anticipated at the
time of NAGPRA's passage and is proceeding too slowly for many. There
is room for improvement in the statute, regulations, and programmatic
activities. The repatriation process created by the existing
regulations is too complex, takes too much time, and is severely
underfunded. Too often, the Department of Interior (DOI) has not
followed the statute and its own regulations in formulating and
carrying out policy. At times, the voice of the Review Committee (RC)
has gone unheard. The operations of the National NAGPRA program are
often opaque and appear erratic. Museums and federal agencies face
hurdles such as limited budgets and staffing shortages that create
backlogs in addressing claims and holding consultations. Too few
resources have been dedicated to the tribes and Native Hawaiian
organizations and the appropriate reburial places are often unavailable
due to current federal land management policy, making it difficult to
proceed with the actual repatriation of human remains and cultural
items.
An update to the NAGPRA regulations is long overdue. Given that the
DOI intends to publish proposed changes to the NAGPRA regulations in
the near future, the SAA believes that the most productive approach
today is to provide the SCIA with answers to those questions asked by
the senators during the hearing upon which the SAA can bring some of
its experience to bear, including our view of what needs to change in
terms of the statute, regulations, and programmatic activities.
Hearing questions and SAA answers
Question. Sen. Cortez-Masto: The BLM and other agencies require
lengthy NAGPRA consultations, is the DOI undertaking any effort to
reduce the length of the process?
Answer. Consultation is a complicated process that often requires
substantial time. Arbitrary timelines for consultation can prevent the
relationship-building and establishment of trust that is necessary for
the meaningful consideration of tribal information and perspectives,
thereby limiting the potential for successful NAGPRA outcomes. To
facilitate effective consultation, SAA recommends that additional funds
be offered for NAGPRA consultation grants, that consultation grants be
awarded more often than once a year, and that federal agencies devote
more resources to their NAGPRA consultations. There are other areas
that could help reduce the time to complete the NAGPRA process: hard
deadlines for the NNP to process inventories and NICs; databases that
provide tribal, museum, and agency NAGPRA contacts; a substantial
increase in the funding for the repatriation efforts of tribes,
museums, and federal agencies; and increased penalties for
noncompliance.
Question. Sen. Cortez-Masto: what funding commitment is needed to
meet goal of law?
Answer. While such a number is difficult to estimate, it is clear
that the current level of support-for the NNP, for compliance within
other federal agencies, and for grants to tribes and museums to carry
out repatriation projects-is wholly inadequate. From our calculations,
an allocation of $2.5 billion over the next 10 years is needed for
substantial progress in repatriation of human remains and funerary
objects. This amount is estimated based on information from the NNP
(the current rate of completion for the publication of notices for of
human remains and associated funerary objects of 21 percent and the $50
million awarded to date for NAGPRA grants) multiplied by a factor of 10
(the vast majority of NAGPRA work is funded through museums, agencies,
and tribes rather than through NAGPRA grants). Federal agencies should
have a specific line item for NAGPRA in their budget to disclose how
much they intend to spend to uphold their NAGPRA responsibilities.
Question. Sen. Cantwell: what changes are needed in the law and
regulations to ensure a sound process?
Answer. SAA recommended statutory changes to NAGPRA:
Definition of Native American--change to ``of, or relating
to, a tribe, people, or culture that is or was indigenous to
the United States"
Enforcement functions (both criminal and civil) delegated to
DOJ
Require federal agencies to provide appropriate (as
determined through tribal consultation) lands for reburial on
federal lands
Protection of sensitive information recorded during NAGPRA
consultation process (exclusion from FOIA)
Revise the penalties to include audits of all federal funds
received by the museum/organization found to be out of
compliance
Add repatriation to the list of duties that can be assumed by
THPO programs, with a concomitant increase in funding to assist
with staffing for that work
SAA recommended Regulatory changes to NAGPRA:
Codify the duties of the National NAGPRA Program
--SAA recommended departmental changes to facilitate
implementation of NAGPRA:
Programmatic activities:
--Refocus the efforts of the National NAGPRA Program (NNP) on
its core functions: notices, grants, databases, training,
technical assistance, and enforcement
--Require the National NAGPRA Program to maintain databases
that will facilitate NAGPRA compliance, such as lists of
tribal, museum, and agency NAGPRA officials
--Create deadlines for the NNP to submit notices to the Federal
Register once they are received by the NNP
--Resume NAGPRA training by NNP staff rather than outsourcing
it
--Ensure that grants are awarded in an equitable manner without
preferential treatment based on unwritten criteria. Have at
least two opportunities per fiscal year for consultation grant
applications to be submitted and reviewed
Staffing:
--Create a unit within the office of the Secretary of the
Interior to oversee all cultural and historic preservation
programs, laws, and compliance effort for tribes, including
NAGPRA; if this does not occur, then undertake to adequately
staff the NNP, and create a Senior Advisor position within the
NNP that is linked to the NPS' Tribal Relations Office
--The SAA supports the NNP being housed in the administrative
unit within the Department of Interior that is the most
efficacious for the Tribal nations and accomplishing the goals
of NAGPRA. It encourages the DOI to give weight to the
recommendations supplied by the tribes on this specific subject
in the fall of 2021 when considering the proper placement of
the program
Question. Sen. Schatz--how does NAGPRA apply to boarding schools?
Answer. The SAA commends the DOI for undertaking the Federal Indian
Boarding School Initiative and trusts that the DOI will consider this
question as part of its review. DOI's consultation with Tribal nations
on this subject will be critical to answering this question, as will
additional research into land and facility ownership and funding.
Question. Sen. Schatz--DOI has hired NAGPRA civil investigator; is
there a backlog in allegations of non-compliance?
Answer. The SAA believes that there is a backlog of allegations of
non-compliance, but the NNP has not provided current information on
civil enforcement investigation since its 2017 annual report. At the
end of FY17, a total of 115 entities were named in letters alleging a
failure to comply. A total of 449 allegations had been investigated for
53 entities, with a total of 32 allegations against 20 entities
substantiated. The status of the investigations into the other 62
entities, and the number of allegations involved, has not been reported
by the NNP. Between FY18 and FY20, at least two letters alleging non-
compliance were received by the NNP; but the number of entities and
allegations in those letters has not been made publicly available. The
addition of the new civil investigator should help with any backlog.
Question. Sen. Murkowski--only 21 percent of institutions have
fully resolved all claims on human remains/items under NAGPRA; is it
accurate to say that 79 percent are in non-compliance?
Answer. According to the NNP, approximately 21 percent of the
institutions with human remains have published notices for the
repatriation or disposition of all of the human remains under their
stewardship. The SAA applauds their efforts. The other 79 percent are
museums and agencies that have not published notices for all human
remains under their stewardship, but they may meet the basic technical
requirements for being in compliance. The SAA understands that very few
situations in NAGPRA are clear-cut; without further information on the
civil enforcement efforts, we do not know how many museums or agencies
are non-compliant. It is also unknown how many entities have never
submitted an inventory or summary. NAGPRA is a process and it takes
time, resources, and institutional will, support, and prioritization to
complete notices for all human remains.
______
Prepared Statement of Hon. J. Michael Chavarria, Governor, Santa Clara
Pueblo
I. Pueblo Calls on Committee to Pursue NAGPRA Amendments
The Pueblo appreciates the opportunity to present information to
the Committee on the important topic of strengthening the Native
American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C.
3001-3013, 18 U.S.C. 1170. Protection of our tribal cultural heritage
items and our sacred places is a priority to the Pueblo, and we have
dedicated significant resources to and gained expertise in these areas
as a result.
We have seen firsthand that NAGPRA is an important tool for
bringing our ancestors and cultural items home. NAGPRA serves as an
example of the federal government taking concrete actions to honor its
trust obligations to Tribal Nations in the context of cultural
preservation and revitalization.
But we have also seen that NAGPRA has many shortcomings and would
benefit from statutory amendments to strengthen and clarify its scope
and legal effects. Therefore, we hope that this oversight hearing is
the first of many conversations between the Committee, Tribal Nations,
and other experts regarding how to strengthen NAGPRA to improve its
functioning. We believe these conversations can lead to concrete
changes to NAGPRA that will significantly benefit Indian Country.
II. Examples of Needed NAGPRA Amendments
There are many areas in which NAGPRA's statutory language could be
strengthened to more fully and robustly protect tribal cultural
heritage items. Below we have provided some examples of areas for
improvement. However, we encourage the Committee to engage in further
tribal consultation and information gathering to gain a more
comprehensive understanding of potential beneficial statutory changes.
Cultural Affiliation
NAGPRA utilizes the phrase ``cultural affiliation'' in important
and potentially gatekeeping ways. ``Cultural affiliation'' plays a
significant role in determining who will receive an ancestor or
cultural item upon repatriation from a museum or federal agency, 25
U.S.C. 3005(a), or upon disposition after removal from federal or
tribal lands, 25 U.S.C. 3002(a)(2). ``Cultural affiliation'' also
shapes how items are identified and how Tribal Nations receive notice
of their inclusion in museums' and federal agencies' inventories, 25
U.S.C. 3003, and summaries, 25 U.S.C. 3004. Importantly, cultural
items that museums and federal agencies deem to have a cultural
affiliation are subject to NAGPRA's repatriation process. See 25 U.S.C.
3005.
One of NAGPRA's most serious weaknesses is the way a ``cultural
affiliation'' finding or lack thereof can derail a repatriation.
Museums and federal agencies use NAGPRA's language as currently drafted
to conclude that a cultural item lacks a cultural affiliation such that
the duty to repatriate is not triggered. See 25 U.S.C. 3005(a). When
coupled with NAGPRA's lack of sufficient oversight regarding such
cultural affiliation determinations, this is a major loophole in
NAGPRA's implementation.
One potential solution is strengthening NAPGRA to clarify that a
museum or federal agency's legal obligation to repatriate, 25 U.S.C.
3005(a), any tribal cultural heritage item is triggered if that item
qualifies as a ``cultural item'' under NAGPRA, 25 U.S.C. 3001(3),
especially in the context of Native American ancestors and their
associated funerary objects. Determining which tribal recipient is most
closely culturally affiliated for purposes of receiving that cultural
item should be a separate question.
Further, decisionmaking authority regarding NAGPRA's application to
a particular item and its repatriation should be placed in the hands of
Tribal Nations, the Review Committee, and the Department of the
Interior rather than in the hands of museums and federal agencies.
Determinations of whether a tribal cultural heritage item is a ``Native
American'' `` cultural item'' covered by NAGPRA and its ``cultural
affiliation'' should be made based on all available evidence, including
Tribal Nations' expertise. Where museums and federal agencies are
permitted any decisionmaking authority, their decisions should be
subject to review before the Review Committee, the Department of the
Interior, and the courts, and Tribal Nations must be able to initiate
such review.
Provenance Requirements
Although NAGPRA prohibits trafficking of ancestors and cultural
items, 18 U.S.C. 1170, these prohibitions only apply to ancestors for
whom the offender lacks a right of possession, 18 U.S.C. l l 70(a),
and to cultural items obtained in violation of NAGPRA, 18 U.S.C. l
170(b). In practice, this usually means prosecution is not possible
unless the federal government, in conjunction with the Tribal Nation,
can demonstrate the cultural item was removed from tribal or federal
land after NAGPRA's 1990 enactment date. See 25 U.S.C. 3002(a), (c).
Thus, without establishing these provenance requirements, an item that
has enough cultural significance to qualify as a ``cultural item''
under NAGPRA, 25 U.S.C. 3001(3), still cannot be protected from
trafficking. \1\ NAGPRA's trafficking prohibitions should apply to all
cultural items regardless of the date they were removed or the land
from which they were obtained.
---------------------------------------------------------------------------
\1\ The Archaeological Resources Protection Act (ARPA) has s imilar
provenance issues. See 16 U.S.C. 470ee(b)(I); see also 16 U.S.C.
470ee(a), (e). One half-measure to fixing the ARPA provenance issues is
adding ``tribal law'' to amend its provisions stating that ARPA
prohibits trafficking of''archaeological resources,'' see 16 U.S.C.
470bb(I), that were removed before ARPA was enacted but in violation of
federal or state law in place at the t ime, 16 U.S.C. 4 70ee(b)(2), (
c ).
---------------------------------------------------------------------------
Separately, NAGPRA should be amended to make clear that museums'
and federal agencies' inventory, summary, and repatriation obligations,
25 U.S.C. 3003-05, are not limited by any provenance requirements,
as some have wrongly read provenance requirements into those
provisions.
Clearer Prohibitions Against Harming Cultural Items Not Removed
NAGPRA prohibits removal of cultural items from federal and tribal
lands without proper permitting, 25 U.S.C. 3002(c), and cultural
items' trafficking, 18 U.S.C. 1170. But NAGPRA's terms should be
strengthened to clarify that harming a cultural item, even if that item
is not removed from federal or tribal lands, is a criminal violation of
NAGPRA.
More Accountability for Government Agencies Managing Federal Lands
As the Pueblo recently saw, the La Cieneguilla Petroglyphs located
on Bureau of Land Management lands were vandalized, and such events are
not uncommon. There must be more accountability for government agencies
that currently manage the lands on which cultural items are located,
and the agencies must be required to ensure proper protection of such
lands when they are made open to the public.
Similarly, when cultural items are located on federal lands,
government agencies must be required to advise and coordinate closely
with Tribal Nations that have a direct connection to the lands. NAGPRA
currently requires a person making a discovery on federal lands to
notify the relevant federal agency, 25 U.S.C. 3002(d)(l), and further
requires tribal consultation ahead of excavation, 25 U.S.C.
3002(c)(2), (4). NAGPRA should be amended to require notification to
and consultation with a Tribal Nation immediately upon discovery.
International Trafficking
The current federal laws often used to protect tribal cultural
heritage items from trafficking, including NAGPRA and the
Archaeological Resources Protection Act (ARPA), 16 U.S.C. 470aa-
470mm, currently leave many tribal cultural heritage items unprotected
from export and trafficking abroad. The Pueblos in particular have seen
many of our sacred tribal cultural heritage items set for auction
overseas and out of our reach. The Safeguard Tribal Objects of
Patrimony (STOP) Act of 2021, H.R. 2930 and S. 1471, aims to stop the
export and facilitate the international repatriation of tribal cultural
heritage items already protected under these federal laws. The STOP Act
passed the House with bipartisan support in December 2021 and is now
before the Senate awaiting passage. A very similar version of the STOP
Act passed the Senate in 2020 via unanimous consent. We call on the
Committee to secure passage of the bill as soon as possible.
Enforcement
Stricter enforcement of NAGPRA is necessary to ensure compliance
with NAGPRA. Similarly, stricter penalties are necessary, and sacred
places containing NAGPRA cultural items should be treated as World
Heritage Sites for purposes of penalty setting. The STOP Act would
increase NAGPRA trafficking penalties. NAGPRA's provisions authorizing
the Secretary of the Interior to assess civil penalties against museums
and federal agencies for violations of their NAGPRA obligations should
also be strengthened. See 25 U.S.C. 3007. Further, NAGPRA must
provide Tribal Nations with remedies whereby we can ensure its
enforcement ourselves because protecting our own tribal cultural
heritage items is ultimately our responsibility.
Thank you for the Committee's attention, and we urge you to
continue this important work. We hope to continue dialogue with you
regarding ways to strengthen NAGPRA.
______
Prepared Statement of the Salt River Pima-Maricopa Indian Community
The Salt River Pima-Maricopa Indian Community (SRPMIC) is located
in Central Arizona, on the southern boundary of the Phoenix
metropolitan area. SRPMIC is comprised of the O'Odham and Piipaash
cultures, which are two different and distinct cultures with unique
histories and languages. SRPMIC's aboriginal territory consists of 3.8
million acres of South Central Arizona, as adjudicated in 1970 by the
U.S. Indian Claims Commission through Docket 228. The combined
adjudicated land claims area of SRPMIC, the Gila River Indian
Community, the Ak-Chin Indian Community, and the Tohono O'Odham Nation,
otherwise referred to as the Four Southern Tribes of Arizona, are used
as the basis for consultation under NAGPRA. However, recent
anthropological studies now recognize the aboriginal use area of the
O'Odham, Piipaash, and their ancestors existing eastward into present
day New Mexico, northward into present day Utah, westward to the
Pacific Coast, and southward of the Sierra Occidental into Mexico
(where there are still O'Odham villages that are a part of the Tohono
O'Odham Nation.)
Introduction
This testimony is drafted in response to the Senate Indian Affairs
Committee Oversight Hearing entitled ``The Long Journey Home: Advancing
the Native American Graves Protection and Repatriation Act's Promise
After 30 Years of Practice.'' SRPMIC is heartened that the Committee is
examining both compliance and implementation of the Native American
Graves Protection and Repatriation Act of 1990 (NAGPRA), as well as
considering legislative solutions to address some of the statutory
issues that have arisen over the last several decades.
The people of the SRPMIC and the Four Southern Tribes of Arizona
have deep and binding ties to one another and believe that the health
and continued existence of our communities relies on these bonds. We
hold the belief that people are more than physical beings, and people
do not cease to exist (spiritually) or to have ties to this earth at
the time of death, but go on to a new world where they continue in a
new form of existence only if their physical remains from this world
are allowed to continue the natural progression undisturbed until their
return to the earth, when the entire body breaks down and is
indistinguishable from the dust. We also believe that all objects
placed intentionally with a burial must be kept with the body and
become subject to the same disposition of the associated remains.
SRPMIC acknowledges the great importance of advancement to an equitable
resolution for the many Ancestors currently awaiting disposition and
looks forward to the time when all of our people are treated with the
respect and dignity that all people deserve.
The main principles of NAGPRA are to provide for the protection of
undisturbed burials, and to provide a mechanism for the repatriation of
human remains, funerary objects, sacred objects, and objects of
cultural patrimony to Native American groups for culturally appropriate
disposition. NAGPRA strives to soothe and correct the injustices
inflicted on Native peoples that occurred due to the disturbance and
destruction of sacred burial places of our ancestors and the wrongful
collection of objects that are vital to continuing our traditional way
of life.
Implementation of NAGPRA has been a long process, and since 1991,
SRPMIC has been successful in repatriating thousands of remains and
cultural items. Over the years we have learned much about how NAGPRA
works, as well as some of the ways in which it has fallen short. This
testimony highlights several suggested fixes to NAGPRA based on the
Community's firsthand experience.
Comments and Recommendations
Redefine ``right of possession'' and ``possession or control'' to
reflect authorized stewardship rather than ownership
SRPMIC asserts that Human remains are not objects and cannot be
owned. We strongly believe that the final and best outcome for any
remains or objects is for them to be returned to the Tribe to be
reburied at an appropriate, unpublicized location that will be
protected in perpetuity.
Currently, NAGPRA allows institutions to completely avoid
repatriating NAGPRA remains and items if it can prove a ``right of
possession.'' This ``right of possession'' is defined in the Act:
``Right of possession'' means possession obtained with the
voluntary consent of an individual or group that had authority
of alienation. .. The original acquisition of Native American
human remains and associated funerary objects which were
excavated, exhumed, or otherwise obtained with full knowledge
and consent of the next of kin or the official governing body
of the appropriate culturally affiliated Indian tribe or Native
Hawaiian organization is deemed to give right of possession to
those remains.
The non-Native concept of possession is highly offensive to SRPMIC
and many other Tribes across the nation. SRPMIC has witnessed and
experienced this exception used by agencies and museums to allow them
to erroneously assert some level of proper title, thus permitting them
to exhibit, research and loan ancestral human remains and cultural
items without fulfilling their NAGPRA responsibilities for
repatriation. In some cases, we have even seen institutions use this
exception to drag out the NAGPRA inventory process and arbitrarily
delay repatriation.
For the purposes of NAGPRA, we believe that human remains and other
NAGPRA objects that have been transferred in the past should be
considered to have been temporarily transferred to an authorized
steward for safeguarding until such time as the objects or remains may
be restored to the Tribe. While it is not an ideal situation, we
acknowledge that in certain circumstances this may be the best option
for a Tribe to protect the Ancestors, and all other NAGPRA items.
We believe that the updated concept of possession articulated above
would respect the intent of this exception--which is to allow
authorized tribal governments to temporarily cede control or custody of
objects for their protection--without implying that remains and related
objects can ever be owned.
For the reasons above, we also recommend eliminating the term
``possession or control'' in the act (``Each Federal agency and each
museum which has possession or control over holdings or collections of
Native American human remains and associated funerary objects shall
compile an inventory.'', 25 U.S.C. 3003(a)). Instead, simply possession
is sufficient, as there are no circumstances under which any
institution may exert full control over any remains or other NAGPRA
objects.
Simplify ``cultural affiliation'' determination process
``Cultural affiliation'' is a fundamental component of NAGPRA and
the repatriation process set forth in the Act. Following enactment,
agencies and institutions were responsible for compiling inventories
and summaries of NAGPRA remains and items, and to the extent possible,
identifying the cultural affiliation of each item. Based on this
initial inventory, Tribes are able to submit repatriation requests for
items and remains that are affiliated with the Tribe.
Unfortunately, due to the size of collections, lack of funding in
the Act for institutions to dedicate staff time to the inventory
process, and in some cases malicious intent to subvert the purposes of
NAGPRA, more than 90 percent of ancestral human remains and cultural
items were not positively affiliated with a present-day Tribe, and
instead were placed on the ``culturally unidentifiable'' list. The
motives for subverting NAGPRA are clear:
Museums--especially research institutions--prefer to maintain
ancestral human remains and cultural items as unidentifiable
based on their own internal policies that allow various forms
of research, including research that may lead to the
destruction of the remains and items, without consent of Tribes
or NHOs.
Delaying and denying cultural affiliation determinations has
allowed museums and institutions to maintain the collections of
ancestors and all cultural items to which they hold no ``right
of possession,'' and continue to do so for their academic,
economic and other interests at the expense of human and civil
rights.
Following this first ``phase'' of cultural affiliation findings,
Tribes, including SRPMIC, have worked with agencies and institutions to
positively identify the cultural affiliation for thousands of items
through a second phase of NAGPRA grants. Tribal consultation, along
with geographical information and information held by the museum or
agency, is all that is required to make a determination of cultural
affiliation under the law. This determination is not an academic or
scientific research project; it is a prescribed regulatory process to
remedy the human and civil rights abuses against Tribes and NHOs
through restitution. The connection between the Tribe(s) or NHO(s) need
only be reasonably shown, does not require evaluation of all possible
forms of evidence, and is not defeated by gaps in the historical
record. Thus, the regulations should make it more clear that this is a
collaborative process that centers around Tribal consultation, and not
merely a weighing of evidence.
SRPMIC has first-hand experience with the flaws of the current
regulations. In 2011, SRPMIC and the Gila River Indian Community
jointly submitted a NAGPRA repatriation request to the Peabody Harvard
Museum which included our cultural affiliation documentation to assist
in the identification of relevant remains and NAGPRA items on their
``culturally unidentifiable'' list. Our cultural affiliation
documentation was rejected by Peabody for various and unsubstantiated
rationales. However, expert archeologists throughout the southwestern
United States agree the NAGPRA items in question came from a known
Hohokam archeological site in Maricopa County in Arizona and are
affiliated to the Four Southern Tribes of Arizona.
The Peabody Harvard Museum then proceeded to apply for and receive
a NAGPRA grant, portions of which were used for the ``review of
evidence towards a reassessment of cultural affiliation of human
remains and funerary objects from southern Arizona.'' Although the
grant concluded in 2016, we have yet to be contacted by the museum with
the results of their analysis. Despite the preponderance of evidence,
which has been used to successfully repatriate thousands of NAGPRA
items to date, the Museum has still not repatriated these clearly
affiliated items.
This is just one example under which many museums have requested
NAGPRA dollars intended for the purpose of consultation, finding
affiliation, and moving forward with repatriation--only to use the
funding to place those Ancestors in a ``culturally unidentifiable''
inventory, indefinitely evading the appropriate remedy.
Were this second phase of affiliation grants directed to Tribal and
NHO efforts to resolve culturally unidentifiable inventory (CUI) lists,
NAGPRA funding would have been utilized more effectively and avoided
the biases and self-interest of museums and institutions protecting
their collections. Moving forward, we recommend that NAGPRA grants be
awarded to institutions that, at a minimum, submit applications jointly
and in collaboration with Tribes and NHOs.
The Act lays out a simple process for determining cultural
affiliation--the current regulations turn that process into an
interminable research project that museums and agencies have used to
burden Tribes, delay and prevent repatriation, and even continue or,
worse, initiate destructive scientific research. The draft regulations
proposed recently by the National Park Service are better, but still
problematic. We ask that you (1) simplify the process of finding
cultural affiliation as outlined by the Act that supports repatriation
for those Ancestors and cultural items that have not yet been
inventoried or placed in summaries as described above; (2) repatriate
the Ancestors and their burial belonging within the CUI inventories
without requiring more museum or agency decisionmaking, delay and
expense; and (3) place the burden of proof on institutions to prove
that items the tribe has claimed affiliation with are in fact
unaffiliated.
Redefine and eliminate term ``culturally unidentifiable'' to
``culturally unidentified''
As demonstrated above, the culturally unidentifiable definition has
been used repeated by agencies and institutions to delay or obstruct
compliance with the Act. Additionally, many institutions have gone on
to write-off their culturally unidentifiable inventory, even when
requesting NAGPRA grant funding. Museums--even well-funded and well-
intentioned ones--have admitted that they will not be proactive with
their culturally unidentifiable inventories. We believe that the term
``culturally unidentifiable'' should be replaced with ``culturally
unidentified.'' This preserves the responsibility for institutions and
agencies to work with Tribes to eventually repatriate all Ancestors and
related objects.
Utilize Secretarial Authority to meaningfully crack down on
institutions not in compliance
The regulations must fully acknowledge and empower the authority of
the Review Committee and the Secretary to oversee, monitor and achieve
compliance with this important human rights legislation. One of the
primary complaints against the implementing regulations is that there
are ``no teeth.'' We propose avenues pursuant to the language of the
Act and other federal law that will underscore the Secretary's role to
enforce Review Committee findings when the Review Committee has found
an alleged violation of NAGPRA.
The Act gives the Secretary of the Interior authority to:
a.Promulgate regulations that bind museums as well as federal
agencies in their responsibilities under NAGPRA (25 U.S.C.
3011);
b.Carry out the special government to government relationship
with Indian Tribes and Native Hawaiian organizations for the
benefit of Tribes and NHOs (Id. 3010);
c.Provide grants to Tribes, NHOs and museums to support
repatriation and complete inventories (Id. 3008);
d.Enforce civil penalties against museums and use its subpoena
powers in those efforts (Id. 3007);
e.Establish a Review Committee that will monitor and review the
implementation of the inventory and identification process and
repatriation activities, specifically nine separate expressed
activities. Some of those activities are:
ensuring a fair, objective consideration and assessment of
all available relevant information and evidence in inventory,
summary and repatriation processes;
upon the request of any affected party, reviewing and making
findings related to the identity or cultural affiliation of
cultural items, or the return of such items;
facilitating the resolution of any disputes among Indian
tribes, Native Hawaiian organizations, or lineal descendants
and Federal agencies or museums relating to the return of such
items including convening the parties to the dispute if deemed
desirable;
compiling an inventory of culturally unidentifiable human
remains that are in the possession or control of each Federal
agency and museum and recommending specific actions for
developing a process for disposition of such remains;
consulting with Indian tribes and Native Hawaiian
organizations and museums on matters within the scope of the
work of the committee affecting such Tribes or organizations;
consulting with the Secretary in the development of
regulations to carry out this chapter;
performing such other related functions as the Secretary may
assign to the committee; and
making recommendations, if appropriate, regarding future care
of cultural items which are to be repatriated. (Id. 3006)
In the Federal Advisory Committee Act (FACA), Congress declared
that ``the function of advisory committees should be advisory only, and
that all matters under their consideration should be determined, in
accordance with law, by the official, agency, or officer involved.'' 5a
U.S.C. 2(b)(6). Thus, if the Review Committee finds, through its
oversight, monitoring, assessment, dispute resolution or other
activities that there is an alleged violation of NAGPRA, then the
Committee must advise the Secretary to take action. Where the alleged
violation is against a museum, the Secretary can proceed through the
civil penalty process. Where alleged violations are made against
federal agencies, then the Secretary must have both duty and ability to
seek compliance from the other agency. If the alleged violation is
within the Department of the Interior, then an appropriate
administrative solution must be found.
The Secretary must be empowered to seek resolution of interagency
disputes. NAGPRA expressly delegates NAGPRA authority to the Secretary
of the Interior, but outside agencies have been reluctant to comply,
and have even asserted the authority to make their own rules contrary
to NAGPRA. To further advance the benefits of reforming the NAGPRA
process, we recommend the creation of an Executive Order that clarifies
the fiduciary duty applicable to all agencies of the United States, as
specified in statutory delegation of authority to the Interior
Secretary to implement the Act, and the concomitant obligation of all
federal agencies to comply with the Secretary's implementing
regulations.
Ban the use and reference of remains & objects during NAGPRA proceeding
process
One of the primary motives for agencies and institutions to drag
out the NAGPRA process is to allow for the continued display, use, and
research of human remains and other NAGPRA items. While many of the
solutions listed above would resolve the primary ways in which agencies
and institutions have avoided or delayed compliance with NAGPRA, it is
possible that other loopholes may be found and exploited by bad actors.
We recommend the Act be amended to explicitly ban the use of
display of, study of, and reference to Native American remains and
NAGPRA items. This will immediately end the persistent human rights
violations current ongoing. Furthermore, it will incentivize agencies
and institutions to finally fully comply with NAGPRA in order to empty
inventory space that is now unable to be used.
Require institutions to provide records of past stewardship of NAGPRA
items to affiliated tribes
NAGPRA specifically deals with items currently in inventory, but as
we work towards a post-NAGPRA future, we recommend requiring
institutions to provide records of transfer for NAGPRA items no longer
in their inventories. For example, an item transferred to private
storage or collection in 1985 would be effectively lost under NAGPRA,
but records of those transfer could be used for Tribes to go after the
private collection.
Require agency staff training on NAGPRA compliance
While NPS is responsible for implementation of NAGPRA and has the
largest number of NAGPRA items on its lands, other federal agencies and
departments, most notably the Bureau of Land Management and the U.S.
Army Corps of Engineers, regularly interact with the law and are
required to comply with NAGPRA. However, currently, agency staff are
unable to attend NAGPRA training sessions held by NPS. Additionally,
federal personnel are not eligible for scholarships to these NAGPRA
related events due to their government status. Federal Agencies are
underrepresented at these trainings, conferences and workshops.
We recommend that the Congress review and allocate funding for
NAGPRA related projects in federal agency budgets to include NAGPRA
training and dedicated NAGPRA Federal personnel to conduct compliance
work. Additionally, we recommendation that DOI Office of the Secretary
and Federal Agency review current travel restrictions on NAGPRA related
trainings, conference and workshops.
NAGPRA compliance is woefully underfunded
Funding for NAGPRA compliance is a significant contributor to many
of the delays and challenges in identifying cultural affiliation.
Additionally, federal agencies are not allowed to apply for NAGPRA
grants therefore making it impossible to adequately perform their
compliance under NAGPRA.
We recommend that DOI, GAO, or another appropriate entity undertake
a study, in consultation with Tribes, on the funding required to
satisfy the goals of NAGPRA and submit this report to Congress for
consideration and funding.
______
Prepared Statement of Hon. Billy Friend, Chief, Wyandotte Nation
I. Nation Calls on Committee to Pursue NAGPRA Amendments
The Nation appreciates the opportunity to present information to
the Committee on the important topic of strengthening the Native
American Graves Protection and Repatriation Act (NAGPRA). 25 U.S.C.
3001-3013. 18U.S.C. 1170. We have seen first hand that NAGPRA is an
important tool for bringing our ancestors and cultural items home.
NAGPRA serves as an example of the federal government taking concrete
actions to honor its trust obligations to Tribal Nations in the context
of cultural preservation and revitalization.
However, we have also seen that NAGPRA has many shortcomings and
could benefit from statutory amendments to strengthen and clarify its
scope and legal effects. Even for NAGPRA provisions that Tribal Nations
believe are black and white, museums, federal agencies, and others
introduce ambiguity that muddies NAGPRA's implementation. Therefore, we
hope that this orversight hearing is the first of manv conversations
between the Committee, Tribal Nations, and other experts regarding how
to strengthen NAGPRA to improve its functioning. We believe these
conversations can lead to concrete changes to NAGPRA that will
significantly benefit Indian Country.
II. Examples of Needed NAGPRA Amendments
There are many areas in which NAGPRA's statutory language could be
strengthened to more fully and robustly protect tribal cultural
heritage items. Below we have provided some examples of areas for
improvement. However, we encourage the Committee to engage in further
tribal consultation and information gathering to gain a more
comprehensive understanding of potential beneficial statutory changes.
Cultural Affiliation
NAGPRA utilizes the phrase ''cultural affiliation'' in important
and potentially gatekeeping ways. ``Cultural affiliation'' plays a
significant role in determining who will receive an ancestor or
cultural item upon repatriation from a museum or federal agency, 25
U.S.C. 3005(a). or upon disposition after removal from federal or
tribal lands. 25 U.S.C. 3002(a)(2). ``Cultural affiliation'' also
shapes how items are identified and how Tribal Nations receive notice
of their inclusion in museums' and federal agencies' inventories. 25
U.S.C. 3003. and summaries, 25 U.S.C. 3004. Importantly. cultural
items that museums and federal agencies deem to have a cultural
affiliation are subject to NAGPRA's repatriation process. See 25 U.S.C.
3005.
One of NAGPRA's most serious weaknesses is the way a ``cultural
affiliation'' finding or lack thereof can derail a repatriation.
Museums and federal agencies use NAGPRA's language as currently drafted
to conclude that a cultural item lacks a cultural affiliation such that
the duty to repatriate is not triggered. See 25 U.S.C. 3005(a). When
coupled with NAGPRA's lack of sufficient oversight regarding such
cultural affiliation determinations, this is a major loophole in
NAGPRA's implementation.
One potential solution is strengthening NAPGRA to clarify that a
museum's or federal agency's legal obligation to repatriate, 25 U.S.C.
3005(a), any tribal cultural heritage item is triggered if that item
qualifies as a ``cultural item'' under NAGPRA, 25 U.S.C. 3001(3).
especially in the context of Native American ancestors and their
associated funerary objects. Determining which tribal recipient is most
closely culturally affiliated for purposes of receiving that cultural
item should be a separate question.
Provenance Requirements
Although NAGPRA prohibits trafficking of ancestors and cultural
items. 18 U.S.C. I 170, these prohibitions only apply to ancestors
for whom the offender lacks a right of possession, 18 U.S.C. 1170(a),
and to cultural items obtained in violation of NAGPRA, 18 U.S.C.
1170(b). In practice. this usually means prosecution is not possible
unless the federal government, in conjunction with the Tribal Nation,
can demonstrate the cultural item was removed from tribal or federal
land after NAGPRA's 1990 enactment date. See 25 U.S.C. 3002(a), (c).
Thus, without establishing these provenance requirements, an item that
has enough cultural significance to qualify as a ``cultural item''
under NAGPRA, 25 U.S.C. 3001(3), still cannot be protected from
trafficking. \1\ NAGPRA's trafficking prohibitions should apply to all
cultural items regardless of the date they were removed or the land
from which they were obtained.
---------------------------------------------------------------------------
\1\ The Archaeological Resources Protection Act (ARPA) has similar
provenance issues. See l6 U.S.C. S 470ee(bxl); see also 16 U.S.C.
470ee(a), (e). One half-measure to fixing the ARPA provenance issues is
adding ``tribal law'' to amend its provisions stating that ARPA
prohibits trafficking of''archaeological resources,'' see 16 U.S.C.
470bb(l), that were removed before ARPA was enacted but in violation of
federal or state law in place at the time, l6 U.S.C. 47oee(b)(2).
(c). Further. decisionmaking authority regarding NAGPRA's application
to a particular item and its repatriation should be placed in the hands
of Tribal Nations, the Review Committee, and the Department of the
Interior rather than in the hands of museums and federal agencies.
Determinations of whether a tribal cultural heritage item is a ``Native
American'' ``cultural item'' covered by NAGPRA and its ``cultural
affiliation'' should be made based on all available evidence, including
Tribal Nations' expertise. Where museums and federal agencies are
permitted any decisionmaking authority, their decisions should be
subject to review before the Review Committee, the Department of the
Interior, and the courts, and Tribal Nations must be able to initiate
such review. Separately. NAGPRA should be amended to make clear that
museums' and federal agencies' inventory. summary. and repatriation
obligations,25 U.S.C. 3003-05, are not limited by any provenance
requirements. as some have wrongly read provenance requirements into
those provisions.
---------------------------------------------------------------------------
International Trafficking
The current federal laws often used to protect tribal cultural
heritage items from trafficking, including NAGPRA and the
Archaeological Resources Protection Act (ARPA), l6 U.S.C.
470aa470mm, currently leave many tribal cultural heritage items
unprotected from export and trafficking abroad. The Safeguard Tribal
Objects of Patrimony (STOP) Act of 2021, H.R. 2930 and S. 1471, aims to
stop the export and facilitate the international repatriation of tribal
cultural heritage items already protected under these federal laws. The
STOP Act passed the House with bipartisan support in December 2021 and
is now before the Senate awaiting passage. A very similar version of
the STOP Act passed the Senate in 2020 via unanimous consent. We call
on the Committee to secure passage of the bill as soon as possible.
Sensitive Information
Successful implementation of NAGPRA requires Tribal Nations to
share extremely sensitive information with federal agencies, where
federal agencies are subject to disclosure requirements under the
Freedom of Information Act (FOIA), 5 U.S.C. 552. NAGPRA must be
amended to exempt from FOIA disclosure information submitted to federal
agencies by Tribal Nations as part of any NAGPRA process. The STOP Act
contains a similar FOIA exemption for information Tribal Nations submit
pursuant to the Act.
Enforcement
Stricter enforcement of NAGPRA and stricter penalties are necessary
to ensure compliance with NAGPRA. The STOP Act would increase NAGPRA
trafficking penalties. NAGPRA's provisions authorizing the Secretary of
the Interior to assess civil penalties against museums and federal
agencies for violations of their NAGPRA obligations should also be
strengthened. See 25 U.S.C. 3007. Further. NAGPRA must provide Tribal
Nations with remedies whereby we can ensure its enforcement ourselves--
because protecting our own tribal cultural heritage items is ultimately
our responsibility.
Thank you for the Committee's attention, and we urge you to
continue this important work. We hope to continue dialogue with you
regarding ways to strengthen NAGPRA.
______
Prepared Statement of Martina Dawley, Tribal Historic Preservation
Officer, Hualapai Tribe
I. Tribe Calls on Committee to Pursue NAGPRA Amendments
The Tribe appreciates the opportunity to present information to the
Committee on the important topic of strengthening the Native American
Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3001-
3013, 18 U.S.C. 1170. We have seen firsthand that NAGPRA is an
important tool for bringing our ancestors and cultural items home.
NAGPRA serves as an example of the federal government taking concrete
actions to honor its trust obligations to Tribal Nations in the context
of cultural preservation and revitalization.
However, we have also seen that NAGPRA has many shortcomings and
would benefit from statutory amendments to strengthen and clarify its
scope and legal effects. NAGPRA implementation continues to be plagued
by deeply rooted paternalism, where museums play a gatekeeping and
decisionmaking role in which they view themselves as the proper owners
and caretakers of tribal cultural heritage items. Tribal Nations have
the knowledge and expertise to make repatriation decisions, and our
cultural heritage items rightfully belong to us under NAGPRA as well as
tribal law. It is time NAGPRA be amended to correct the imbalance in
which museums have acted as ultimate authorities in NAGPRA enforcement.
Tribal Nations must be the ultimate decision makers.
Therefore, we hope that this oversight hearing is the first of many
conversations between the Committee, Tribal Nations, and other experts
regarding how to strengthen NAGPRA to improve its functioning. We
believe these conversations can lead to concrete changes to NAGPRA that
will significantly benefit Indian Country.
II. Examples of Needed NAGPRA Amendments
There are many areas in which NAGPRA's statutory language could be
strengthened to more fully and robustly protect tribal cultural
heritage items. Below we have provided some examples of areas for
improvement. However, we encourage the Committee to engage in further
tribal consultation and information gathering to gain a more
comprehensive understanding of potential beneficial statutory changes.
Cultural Affiliation
NAGPRA utilizes the phrase ``cultural affiliation'' in important
and potentially gatekeeping ways. ``Cultural affiliation'' plays a
significant role in determining who will receive an ancestor or
cultural item upon repatriation from a museum or federal agency, 25
U.S.C. 3005(a), or upon disposition after removal from federal or
tribal lands, 25 U.S.C. 3002(a)(2). ``Cultural affiliation'' also
shapes how items are identified and how Tribal Nations receive notice
of their inclusion in museums' and federal agencies' inventories, 25
U.S.C. 3003, and summaries, 25 U.S.C. 3004. Importantly, cultural
items that museums and federal agencies deem to have a cultural
affiliation are subject to NAGPRA's repatriation process. See 25 U.S.C.
3005.
One of NAGPRA's most serious weaknesses is the way a ``cultural
affiliation'' finding or lack thereof can derail a repatriation.
Museums and federal agencies use NAGPRA's language as currently drafted
to conclude that a cultural item lacks a cultural affiliation such that
the duty to repatriate is not triggered. See 25 U.S.C. 3005(a). When
coupled with NAGPRA's lack of sufficient oversight regarding such
cultural affiliation determinations, this is a major loophole in
NAGPRA's implementation.
One potential solution is strengthening NAPGRA to clarify that a
museum or federal agency's legal obligation to repatriate, 25 U.S.C.
3005(a), any tribal cultural heritage item is triggered if that item
qualifies as a ``cultural item'' under NAGPRA, 25 U.S.C. 3001(3),
especially in the context of Native American ancestors and their
associated funerary objects. Determining which tribal recipient is most
closely culturally affiliated for purposes of receiving that cultural
item should be a separate question.
Further, decisionmaking authority regarding NAGPRA's application to
a particular item and its repatriation should be placed in the hands of
Tribal Nations, the Review Committee, and the Department of the
Interior rather than in the hands of museums and federal agencies.
Determinations of whether a tribal cultural heritage item is a ``Native
American'' ``cultural item'' covered by NAGPRA and its ``cultural
affiliation'' should be made based on all available evidence, including
Tribal Nations' expertise. Where museums and federal agencies are
permitted any decisionmaking authority, their decisions should be
subject to review before the Review Committee, the Department of the
Interior, and the courts, and Tribal Nations must be able to initiate
such review.
Provenance Requirements
Although NAGPRA prohibits trafficking of ancestors and cultural
items, 18 U.S.C. 1170, these prohibitions only apply to ancestors for
whom the offender lacks a right of possession, 18 U.S.C. 1170(a), and
to cultural items obtained in violation of NAGPRA, 18 U.S.C. 1170(b).
In practice, this usually means prosecution is not possible unless the
federal government, in conjunction with the Tribal Nation, can
demonstrate the cultural item was removed from tribal or federal land
after NAGPRA's 1990 enactment date. See 25 U.S.C. 3002(a), (c). Thus,
without establishing these provenance requirements, an item that has
enough cultural significance to qualify as a ``cultural item'' under
NAGPRA, 25 U.S.C. 3001(3), still cannot be protected from
trafficking. \1\ NAGPRA's trafficking prohibitions should apply to all
cultural items regardless of the date they were removed or the land
from which they were obtained.
---------------------------------------------------------------------------
\1\ The Archaeological Resources Protection Act (ARPA) has similar
provenance issues. See 16 U.S.C. 470ee(b)(1); see also 16 U.S.C.
470ee(a), (e). One half-measure to fixing the ARPA provenance issues is
adding ``tribal law'' to amend its provisions stating that ARPA
prohibits trafficking of ``archaeological resources,'' see 16 U.S.C.
470bb(1), that were removed before ARPA was enacted but in violation of
federal or state law in place at the time, 16 U.S.C. 470ee(b)(2),
(c).
---------------------------------------------------------------------------
Separately, NAGPRA should be amended to make clear that museums'
and federal agencies' inventory, summary, and repatriation obligations,
25 U.S.C. 3003-05, are not limited by any provenance requirements,
as some have wrongly read provenance requirements into those
provisions.
Delays Due to Research
NAGPRA creates an exemption from the requirement to expeditiously
repatriate cultural items to requesting Tribal Nations if the cultural
items are indispensable for completion of a specific scientific study
that benefits the United States. 25 U.S.C. 3005(b). This provision
must be removed. Repatriation of cultural items and ancestors is of
utmost importance, and such repatriation should not be delayed due to
research.
Requirement to Immediately Comply with NAGPRA
NAGPRA requires museums and federal agencies with possession or
control over holdings or collections containing cultural items to
consult with Tribal Nations on inventories and summaries, 25 U.S.C.
3003(b)(1)(A), 3004(b)(1)(B), and to repatriate such cultural items
when certain requirements are met, 25 U.S.C. 3005. Yet, many museums
do not immediately comply with these NAGPRA requirements while they
process newly arrived items, sometimes conducting research on such
items, including ancestors, while the accession process takes place.
NAGPRA must be amended to require immediate compliance. Similarly,
NAGPRA must be amended to require immediate compliance for any item
containing human remains--even when those remains are contained in
other objects.
Reinterment on Federal Lands
The Tribe seeks amendments to NAGPRA that direct federal agencies
to take possession of ancestors and other cultural items for
reinterment at Tribal Nations' requests. Many Tribal Nations seek
reinterment locations that are as close as possible to the location
from which an ancestor or cultural item was taken, and public lands are
often the best option. However, many federal agencies refuse to accept
ancestors and other cultural items for reinterment when they cannot be
proven to have come from the boundaries of the particular area of
federal lands. Instead, items that should be immediately reinterred are
stored offsite. NAGPRA should be amended to require such reinterment.
International Trafficking
The federal laws often used to protect tribal cultural heritage
items from trafficking, including NAGPRA and the Archaeological
Resources Protection Act (ARPA), 16 U.S.C. 470aa-470mm, currently
leave many tribal cultural heritage items unprotected from export and
trafficking abroad. The Safeguard Tribal Objects of Patrimony (STOP)
Act of 2021, H.R. 2930 and S. 1471, aims to stop the export and
facilitate the international repatriation of tribal cultural heritage
items already protected under these federal laws. The STOP Act passed
the House with bipartisan support in December 2021 and is now before
the Senate awaiting passage. A very similar version of the STOP Act
passed the Senate in 2020 via unanimous consent. We call on the
Committee to secure passage of the bill as soon as possible.
Enforcement
Stricter enforcement of NAGPRA and stricter penalties are necessary
to ensure compliance with NAGPRA. The STOP Act would increase NAGPRA
trafficking penalties. NAGPRA's provisions authorizing the Secretary of
the Interior to assess civil penalties against museums and federal
agencies for violations of their NAGPRA obligations should also be
strengthened. See 25 U.S.C. 3007. Further, NAGPRA must provide Tribal
Nations with remedies whereby we can ensure enforcement of NAGPRA--as
protecting our own tribal cultural heritage items is ultimately our
responsibility.
Thank you for the Committee's attention, and we urge you to
continue this important work. We hope to continue dialogue with you
regarding ways to strengthen NAGPRA.
______
Response to Written Questions Submitted by Hon. Brian Schatz to
Carmen Hulu Lindsey
Question 1. Are there specific aspects of NAGPRA that make it
challenging for the Native Hawaiian community to implement?
Answer. OHA has identified four major challenges for Native
Hawaiians when making repatriation claims under the Native American
Graves Protection and Repatriation Act (NAGPRA): funding, lack of
respect for Native Hawaiian oral traditions and spiritual evidence, the
ability of Native Hawaiian religious leaders to serve on the NAGPRA
review committee, and the definition of a Native Hawaiian organization
(NHO). The issues regarding Native Hawaiian religious leaders serving
on the NAGPRA review committee and definition of NHO was previously
cited as points of concern in my written testimony; but, elaborated
upon further here with suggested amendment language.
(a) Funding
Given that many Natives Hawaiians today live in the remote island
chain of Hawai`i, funding for repatriation has historically been a
challenge as long-distance travel is needed to recover our ancestors
and to meaningfully consult. Even with advances in modern technology
that has allowed consultations to occur in a virtual setting, there is
still no replacement for face-to-face meetings. Further, it is not
culturally preferred to simply ship our iwi kupuna (ancestral Hawaiian
human remains) home.
In the past, OHA supported our beneficiaries through either direct
(i.e., airfare, lodging, ground transport, education, third-party
researchers, reburial materials) or indirect costs (i.e., staff time,
education workshops). In other cases and more recent instances, private
donations and grants have been sought to facilitate repatriation
returns. In more difficult claims, it has further been necessary to
hire third party experts to assist in rebutting museum interpretations
that cast doubt on where iwi kupuna came from or question ancestry
through the use of archaic craniometric methods. Even after the iwi
kupuna are returned home, costs can still be incurred by OHA or
beneficiaries to pay for burial materials (i.e., muslin, lauhala
baskets) and the construction of reburial vaults.
In terms of indirect costs, OHA dedicates numerous staff from all
across the organization for repatriation purposes. While repatriation
claims are primarily handled through our Compliance Enforcement
advocates, OHA has further utilized research, legal, and neighbor
island community resources staff. OHA has even provided educational
workshops on NAGPRA compliance to better assist families with making
claims or help them understand the process when partnering with OHA on
one. On the low end, an easy NAGPRA claim could take as much as 58
hours of staff time, while a more difficult case could take up to 450
hours or more of staff time.
Notably, OHA has been the primary point of contact for
international repatriations as many countries will not repatriate to
private individuals or NHOs without State or Federal support. As OHA is
specifically called out in NAGPRA for having expertise in Native
Hawaiian affairs \1\ and the recognized State agency to represent the
lawful interest of Native Hawaiian in the State of Hawai`i
constitution, \2\ other countries have looked to OHA when repatriation
claims are filed and often request to know what the repatriation
process would be like if it were handled in the United States.
Fortunately, U.S. Embassies have assisted OHA in these endeavors
through letters of support that acknowledge OHA's standing as an NHO
under NAGPRA. Thus, while NAGPRA does not apply internationally, it has
nevertheless been a useful tool to facilitate international returns.
Again, these repatriation costs (which are often much higher for
international claims) have been absorbed by OHA and Native Hawaiian
beneficiaries over the years.
---------------------------------------------------------------------------
\1\ 25 USC 3001(11)(c)
\2\ HAW. CONST., art. XII, 5 (1978).
---------------------------------------------------------------------------
(b) Lack of Respect for Native Hawaiian Oral Traditions and Spiritual
Evidence
Still to this day, OHA experiences problems with oral histories or
spiritual information being challenged in favor of academic or
historical documentation. This more so seems to be a greater problem
when claiming moepu (funerary objects) and sacred objects.
Statistically, the return of iwi kupuna has out-numbered the return of
sacred objects and moepu. This is in part due to the fact that the
taking of human remains is widely indefensible in a post-colonial
academic arena, whereas interpretive arguments can still be brought
forth by institutions in opposition to the repatriation of cultural
objects. OHA still encounters problems when it comes to these sacred
objects and moepu as use of these objects have been questioned by
museum professionals who argue for utilitarian function over ceremonial
ones.
For example, the families of Honaunau in partnership with OHA has a
standing NAGPRA claim for a funerary effigy of the Hawai'i Island Chief
Keawe with the Chicago Field Museum. Per the families of Honaunau, this
ki'i (wooden figure) was placed above the bones of Chief Keawe for
deification purposes and made in the likeness of Keawe for his
descendants to remember him by. However, these oral traditions have
constantly been questioned by museum staff at the Chicago Field Museum
since academic sources have never documented the sacred deification
rituals or the use of the ki'i as an effigy of Keawe. The rebuttals
from the Chicago Field Museum have deeply hurt the Honaunau families
that have a kuleana (responsibility) to care for their ancestral
remains and respective moepu. Essentially, this prolonged debate is
delaying much needed healing.
While the Chicago Field Museum case may very well eventually be
taken to the NAGPRA Review Committee, it is unfortunate to have to
resort to such appeals. All native peoples and their sacred oral
traditions should be respected in the way that museum staff respect
these academic sources. In other repatriation claims where there is
limited provenance information, Native Hawaiians have utilized gifted
kaula (or seers) to provide insightful information; yet, these
spiritual identification methods are typically dismissed by museum
professionals out of a lack of respect and understanding.
Notably, the first NAGPRA appeal was brought to the NAGPRA Review
Committee by the NHO Hui Malama I Na Kupuna `o Hawai`i Nei (hereinafter
Hui Malama) in 1993 as the Phoebe Hearst Museum at California Berkely
agreed to only repatriate 3 out of 5 iwi kupuna labeled as being from
Hawai`i due to a lack of historical evidence for all 5. Hui Malama
argued within their written testimony that the identity of the human
remains in question could be identified through ceremony. The NAGPRA
Review Committee did in fact accept Hui Malama's written testimony and
recommended repatriation of 1 of the iwi kupuna based on the spiritual
evidence provided, but further required physical examination of the
other iwi kupuna. The physical examination results did later find that
the iwi kupuna was of Hawaiian ethnicity as was first argued through
the provided spiritual ceremony.
Oral traditions and spiritual knowledge thus need parity with
academic sources and examination methods within NAGPRA. OHA believes
that addressing this will allow for a greater number of moepu and
sacred objects to be returned back home to Hawai`i, and limit the
questioning of iwi kupuna that are claimed.
(c) Ability of Native Hawaiian Religious Leaders to Serve on the NAGPRA
Review Committee
Within the existing statutory language of 25 U.S.C. 3006, the
NAGPRA Review Committee is to consist of seven members, two of which
must be traditional Indian religious leaders. This Review Committee is
meant to monitor and review the implementation of the inventory and
identification process and repatriation activities. While OHA does not
believe the original intent of the language was meant to be
exclusionary, OHA has received recent complaints that traditional
Hawaiian religious leaders were deliberately being excluded from
consideration as one of these traditional religious leaders. It is
unclear to OHA how long this practice has extended into past review
committee selection processes.
In the early years of NAGPRA, Native Hawaiian cases were the most
heard by the Review Committee. OHA was there to assist and observe
Native Hawaiians taking repatriation related disputes as far as they
needed to go to resolve disagreements with museums and Federal
institutions. Given the level of detail presented during these
committee reviews, having a Native Hawaiian traditional religious
leader on the NAGPRA Review Committee may have expedited some cases and
provided a better understanding of Native Hawaiian concerns. While the
number of Native Hawaiian cases to the NAGPRA Review Committee has
greatly diminished in recent times, OHA is aware of a few other claims
that may need to proceed through such an appeal process.
(d) Definition of an NHO
25 USC 3001 does not currently require that an NHO actually
consist of Native Hawaiians. The current language has historically been
contentious and previously presented as problematic in testimony to the
Committee in 2004. \3\ In the past, a museum receiving federal funds
and recreational clubs with a stated mission to serve Native Hawaiians
believed they could qualify as a NHO to claim human remains and
funerary objects. Allowing a museum to become an NHO to claim cultural
objects they held would have presented a clear conflict of interest and
undermined the intent of NAGPRA.
---------------------------------------------------------------------------
\3\ See December 8, 2004, Oversight Hearing before the Committee on
Indian Affairs, 108th Congress, to receive testimony on the application
of the Native American Graves Protection and Repatriation Act in the
State of Hawai`i.
---------------------------------------------------------------------------
Additionally, the definition of an NHO is notably inconsistent
across Federal statutes and policies. At times, institutions have
looked to the NHO list within the Secretary's Office of Native Hawaiian
Relations for NHOs to consult with for NAGPRA purposes. OHA notes that
this list is a self-authenticating, self-identifying, and self-
certifying list created as a means to enable federal agencies to have
the names and addresses of potential Hawaiian organizations who they
could send a general notice to on a wide array of Federal matters. This
list was not specifically created for NAGPRA related responsibilities
and there was no review by the Office of Native Hawaiian Relations to
determine whether the information conveyed to them was accurate or
truthful, or whether the entities who volunteered their names and
contact information had any cultural expertise, experience, capacity,
interest, or demonstrated discretion with regards to the handling of or
the involvement with Hawaiian human remains and cultural items. Yet,
these NHOs can still be identified to consult on NAGPRA.
Granted, an inappropriate NHO may be weeded out through determining
cultural affiliation or lineal descent of a NAGPRA claim; however,
NAGPRA currently allows the Federal entity or museum to assess an NHOs
cultural affiliation. Historically, Hawaiian claims have mostly been
through cultural affiliation as cultural affiliation is less stringent
then proving lineal descent. Federal institutions and museums thus tend
to be liberal in allowing NHOs to claim cultural affiliation status. As
a result, you may have NHOs making claims inappropriately or causing
disagreements with legitimate claimants.
Question 2. What could be improved to make the statute more
responsive to Native Hawaiian concerns?
(a) Funding
Answer. While NAGPRA grants are available to OHA, OHA is cautious
about applying as not to compete with other NHOs or families that are
in greater need then we are. Given OHA's unique constitutional mandate
to represent Native Hawaiians and the demonstrated work that we've done
on NAGPRA over the last 30 years, a direct authorization of
appropriations to OHA within 25 USC 3012, or a specific type of grant
that is only eligible to OHA within 25 USC 3008, would further help
our cause and allow for an even more expeditious return of our
ancestors. No specific statutory amendments are provided here at this
time, but we welcome further discussion on this topic.
Further, NAGPRA grants could be made available for international
repatriation claims that are supported by the U.S. Department of State.
25 USC 3008 could be amended to read:
``(a) Indian Tribes and Native Hawaiian organizations
The Secretary is authorized to make grants to Indian tribes and
Native Hawaiian organizations for the purpose of assisting such tribes
and organizations in the domestic repatriation of Native American
cultural items under NAGPRA, or abroad when international claims are
supported by the U.S. Department of State.''
(b) Lack of Respect for Native Hawaiian Oral Traditions and Spiritual
Evidence
25 USC 3005(a)(4) currently indicates that cultural affiliation
to Native American human remains and funerary objects can be
demonstrated through evidence based upon ``geographical, kinship,
biological, archaeological, anthropological, linguistic, folkloric,
oral traditional, historical, or other relevant information or expert
opinion''. Missing from this list of evidence is ``spiritual
evidence''.
OHA recommends the following amendments to 25 USC 3005(a)(4):
``(4) Where cultural affiliation of Native American human
remains and funerary objects has not been established in an
inventory prepared pursuant to Section 3003 of this title, or
the summary pursuant to Section 3004 of this title, or where
Native American human remains and funerary objects are not
included upon any such inventory, then, upon request and
pursuant to subsections (b) and (e) and, in the case of
unassociated funerary objects, subsection (c), such Native
American human remains and funerary objects shall be
expeditiously returned where the requesting Indian tribe or
Native Hawaiian organization can show cultural affiliation by a
preponderance of the evidence based upon geographical, kinship,
biological, archaeological, anthropological, linguistic,
folkloric, oral traditional historical, spiritual or other
relevant information or expert opinion.''
(c) Ability of Native Hawaiian Religious Leaders to Serve on the NAGPRA
Review Committee
OHA believes that Native Hawaiian religious leaders must be
provided with the same standing as Tribal religious leaders when it
comes to applying for the Review Committee. As such, an amendment to 25
U.S.C. 3006(b)(1) is needed that would broaden the eligibility to all
types of Native American traditional religious leaders instead of just
Indian religious leaders.
We recommend the following amendment to 25 U.S.C. 3006(b)(1):
``(b) Membership
(1) The Committee established under subsection (a) shall be
composed of 7 members,
(A) 3 of whom shall be appointed by the Secretary from
nominations submitted by Indian tribes, Native Hawaiian
organizations, and traditional Native American religious
leaders with at least 2 such persons being traditional Indian
religious leaders.''
(d) Definition of an NHO
As detailed in OHA's written testimony, the definition of an NHO
should be updated to increase clarity and maintain consistency across
federal laws and policies affecting Native Hawaiians. Most importantly,
an NHO should be required to consist of Native Hawaiians in substantive
policy-making decisions and have some level of demonstrated expertise
in Hawaiian burial or cultural matters within the scope of NAGPRA.
With these concerns in mind, we recommend the following definition
for NHO within 25 USC 3001(11):
``(11) `Native Hawaiian organization' means any organization
which--
(A) serves the interests of Native Hawaiians;
(B) has Native Hawaiians in substantive and policymaking
positions within the organization; and
(C) has expertise in Native Hawaiian affairs and
demonstrated discretion with regard to handling Hawaiian burial
or cultural matters within the scope of NAGPRA. For the
purposes of NAGPRA, the term `Native Hawaiian organization'
shall include, but is not be limited to, the Office of Hawaiian
Affairs.''
Closing Remarks
Mahalo for this opportunity to provide written responses to the QFR
needed to complete the SCIA's hearing record. We look forward to seeing
much needed and long-awaited change to this important statute. Please
let us know if any further information is needed.
______
Response to Written Questions Submitted by Hon. Brian Schatz to
Dr. Anna Maria Ortiz
Question 1. According to your hearing testimony, consultation is
central to carrying out the federal government's responsibility to
protect Tribal cultural heritage but consultation practices need to be
improved. Would federal agencies benefit from a centralized
consultation resource center that provides technical assistance and
training to all agencies on best practices, particularly for
infrastructure development activities?
Answer. We continue to believe that improved consultation between
federal agencies and tribes is important. Although we have not
specifically evaluated whether federal agencies would benefit from a
centralized consultation resource center, our 2019 report on tribal
consultation recommended that the Federal Permitting Improvement
Steering Council's (FPISC) Office of the Executive Director work
collaboratively with FPISC members to develop a plan to establish a
central information system to identify and notify tribes about matters
related to infrastructure projects. \1\ We stated that the plan should
(1) establish well-defined goals for the system, (2) specify FPISC
members' roles and responsibilities for establishing and maintaining
the system given existing statutory authorities, and (3) identify the
resources necessary for developing and maintaining the system. We also
recommended that, as a central information system is being established,
the office should work collaboratively with FPISC members to consider
how they will communicate with and involve tribes to help ensure the
accuracy of tribal data in the system. \2\
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\1\ GAO, Tribal Consultation: Additional Federal Actions Needed for
Infrastructure Projects, GAO-19-22 (Washington, D.C.: Mar. 20, 2019).
\2\ The Federal Permitting Improvement Steering Council (FPISC),
which includes agencies that consult with tribes on infrastructure
projects, recommended the development of a central federal information
system of tribal areas of interest and points of contact for
consultation in its fiscal year 2018 best practices. As of November
2018, the FPISC members were: the Advisory Council on Historic
Preservation, Council on Environmental Quality, Department of
Agriculture, Department of the Army, Department of Commerce, Department
of Defense, Department of Energy, Department of Homeland Security,
Department of Housing and Urban Development, Department of the
Interior, Department of Transportation, Environmental Protection
Agency, Federal Energy Regulatory Commission, General Services
Administration, Nuclear Regulatory Commission, and Office of Management
and Budget. The FPISC was created by statute to make the process for
federal approval for certain infrastructure projects more efficient.
Pub. L. No. 114-94, div. D, tit. XLI, 129 Stat. 1312, 1741-1762 (2015).
The Executive Director is the Chair of the FPISC, who works within the
FPISC Office of the Executive Director.
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In response to these recommendations, in February 2022, the FPISC
Office of the Executive Director told us that it was taking actions to
improve coordination between the federal government and federally
recognized tribes on infrastructure projects, including finalizing an
implementation plan by the Department of Housing and Urban Development
and the Advisory Council on Historic Preservation to expand the Tribal
Directory Assistance Tool. According to the office, enhancements to the
tool will provide FPISC members with a single, public database for
identifying and notifying tribes on matters related to infrastructure
projects and would improve the efficiency of federal agencies. The
office further stated that FPISC members will be engaged to ensure that
the enhancements meet overall FPISC needs and responsibilities, and
help ensure that information in the tool is consistently conveyed from
all levels of the federal government.
Question 2. NAGPRA allows for the excavation of ancestral remains
pursuant to an Archaeological Resources Protection Act permit in
certain cases. Is the permitting process across agencies sufficiently
uniform to ensure consistency in the granting of such permits?
Answer. GAO has not analyzed the Archeological Resources Protection
Act (ARPA) permitting process across federal agencies to determine
whether it is sufficiently uniform to ensure consistency in the
granting of such permits.
Question 3. How has inadequate consultation with Tribes and Native
Hawaiian organizations impacted NAGPRA implementation?
Answer. As stated in our February 2022 testimony, one of the
continuing challenges with implementing NAGPRA is the repatriation of
Native American cultural items, such as human remains, still in
collections. Of particular note are the more than 116,000 Native
American human remains that are still in collections, 95 percent of
which have not been determined to be affiliated with any present-day
tribe or Native Hawaiian organization, according to the National NAGPRA
Program's fiscal year 2020 report.
Stakeholders have suggested that enhanced consultation would help
with the repatriation of Native American cultural items. For example,
the Association on American Indian Affairs states in its comments on
the draft proposed revisions to the NAGPRA regulations that the goal of
all consultation and collaboration must be to support a determination
that leads to repatriation, especially considering that cultural items
(as they are defined) were removed without a right of possession. In
addition, the Association on American Indian Affairs and the National
Association of Tribal Historic Preservation Officers have called for
measures to ensure meaningful consultation in their comments on the
draft proposed revisions to the NAGPRA regulations, rather than merely
a procedural requirement that must be satisfied.
Our past work as also shown that enhanced consultation and
communication can help with the repatriation of Native American
cultural items. In 2018, we reported on actions federal agencies have
taken in response to Native American tribes' requests for assistance in
repatriating cultural items from overseas, including conducting
listening sessions and consultations. \3\ One example we highlighted in
that report--the repatriation of the Acoma Shield--depended heavily on
the close relationships forged between the Pueblo of Acoma and federal
agencies. \4\ We have also reported on the role of consultation in
other contexts. For example, in another GAO report, we recommended that
agencies, including Interior, establish or update their policies to
better communicate their consideration of tribal input during the
consultation process with tribes. \5\
\3\ GAO, Native American Cultural Property: Additional Agency
Actions Needed to Assist Tribes with Repatriating Items from Overseas
Auctions, GAO-18-537 (Washington, D.C.: Aug. 6, 2018).
\4\ In 2016, the Pueblo of Acoma sought assistance from Interior,
Justice, and State to repatriate a cultural item known as the Acoma
Shield, a painted shield made for ceremonial use that the tribe said
was stolen in the 1970s.The shield was returned to the tribe in
November 2020.
\5\ GAO-19-22.
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Question 4. Has GAO investigated or received a request to
investigate any aspect of the Indian boarding school issue?
The legacy of Indian boarding schools has been identified by mental
health professionals as a source of intergenerational trauma that
reverberates throughout Native communities to this day. GAO has not
investigated or received a specific request to investigate any aspect
of the Indian boarding school issue. However, we have had conversations
with stakeholders about topics for potential investigation stemming
from issues related to Native American boarding schools, including
student health care concerns and oversight, as well as the effects of
federal Indian boarding school policies.
Question 5. Are there additional aspects of NAGPRA that new GAO
research could address?
There are several potential areas for future GAO audit work
regarding NAGPRA. Examples include the following:
A status update on federal agencies' implementation of
NAGPRA since 2010, including a review of the status of federal
agency collections of Native American cultural items housed in
non-federal institutions such as universities.
An examination of challenges faced by Native Hawaiian
organizations and Alaska Natives regarding the repatriation of
cultural items under NAGPRA.
An examination of implementation of any revisions to NAGPRA
regulations if finalized.
An examination of Interior's oversight of museum compliance
with NAGPRA, including identifying new entities that may be
subject to NAGPRA because they received federal financial
assistance provided in response to COVID-19.
______
Response to Written Questions Submitted by Hon. Ben Ray Lujan to
Dr. Anna Maria Ortiz
Question 1. GAO's 2021 report on Native American cultural resources
found that federal agencies are not required to track which incidents
of theft or damage involve Native American cultural resources. How has
this oversight impeded NAGPRA investigations and enforcement?
Answer. In 2021, we reported that federal agencies are not required
to track which incidents of theft or damage involve Native American
cultural items. \1\ According to agency officials from several agencies
we interviewed at the time, their law enforcement databases were
designed to assist and track investigations broadly, not to readily
identify incidents involving the theft or damage of Native American
cultural items since there is no requirement to do so. \2\ Agencies
primarily use their law enforcement databases to record and manage
investigations but may also use them to analyze crime data, assist with
staffing decisions, and inform resource allocation and budgeting
decisions.
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\1\ GAO, Native American Cultural Resources: Improved Information
Could Enhance Agencies' Efforts to Analyze and Respond to Risks of
Theft and Damage, GAO-21-110 (Washington, D.C.: Mar. 4, 2021).
\2\ The agencies included in our 2021 review were the Department of
Agriculture's U.S. Forest Service; the Department of the Interior's
Bureau of Indian Affairs, Bureau of Land Management, U.S. Fish and
Wildlife Service, and National Park Service; the U.S. Army Corps of
Engineers; and the Tennessee Valley Authority.
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According to officials from six of the seven agencies we reviewed
that manage or administer federal and Indian lands, resource
constraints and limited data have also hindered their ability to detect
and investigate instances of theft and damage to Native American
cultural items. Specifically, they noted reductions in the number of
law enforcement officers. For example, U. S. Fish and Wildlife Service
officials we interviewed said that from fiscal year 2009 to fiscal year
2018, the number of the agency's law enforcement officers decreased
from 441 to 231. Agency officials also said that many sites are
unknown, and when they receive information about an alleged incident,
they do not have sufficient information on the previous conditions of
the site to know what items may have been stolen or damaged, or when
the incident may have taken place.
We concluded in our report that to effectively analyze and address
risks to Native American cultural items, agencies need information to
support decisionmaking, such as the location and condition of
archeological sites and numbers or trends of incidents of theft and
damage. As a result, we recommended that each of the agencies take
steps to identify and obtain such information to enhance their ability
to analyze and respond to risks to Native American cultural items and
ensure that they are prioritizing their constrained resources to
mitigate the greatest risks.
Question 2. Has the Bureau communicated that it is taking steps to
implement this recommendation since then? Once implemented, how will
this recommendation enable the Bureau to better prevent and respond to
instances of cultural resource theft and damage on federal lands?
Answer. In November 2021, the Department of the Interior
communicated to us that the Bureau of Indian Affairs (BIA) agreed with
GAO's findings related to the Archaeological Resources Protection Act
of 1979 (ARPA) and Native American Graves Protection and Repatriation
Act (NAGPRA). In its response, Interior stated that its Office of Trust
Services, Division of Natural Resources, Branch of Environmental and
Cultural Resource Management provided fiscal year 2021 funding to each
of the 12 Bureau Regional Offices for the continuing placement of a
Regional Archaeologist to ensure ARPA and NAGPRA compliance. Regional
Archaeologists are tasked with developing and implementing a consistent
methodology for targeting BIA's efforts to analyze and address risks to
Native American cultural items. They are also tasked with sharing any
promising practices with the Departmental Consulting Archeologist.
While implementing GAO's recommendation will not address all of the
underlying hindrances to protecting cultural items, identifying and
obtaining information to enhance its ability to analyze and respond to
risks to Native American cultural items could help to ensure it is
prioritizing its constrained resources to mitigate the greatest risks.
Question 3. What has changed with respect to NAGPRA implementation
since GAO's 2010 report, and what challenges have persisted since GAO's
last review?
Answer. During the 30 years since the passage of NAGPRA, federal
agencies have made some progress in addressing the act's requirements,
including repatriating over 1.7 million associated funerary objects
with human remains, according to the National NAGPRA Program's fiscal
year 2020 annual report. In addition, as a result of some of our
previous recommendations, annual data on the status of federal
agencies' repatriation efforts are readily available to Congress and
the public. \3\
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\3\ GAO, Native American Graves Protection and Repatriation Act:
After Almost 20 Years, Key Federal Agencies Still Have Not Fully
Complied with the Act, GAO-10-768 (Washington, D.C.: July 28, 2010).
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However, as we have previously reported, and as tribes and tribal
organizations have stated, agencies continue to face challenges in
implementing and enforcing NAGPRA. While agencies have made progress in
repatriating remains to culturally affiliated tribes, human remains of
more than 116,000 individuals are still in collections and have not yet
been culturally linked to a present-day tribe or Native Hawaiian
organization. In addition, challenges remain with implementing NAGPRA's
consultation requirements and addressing limitations in the
prohibitions on theft and trafficking of Native American cultural
items. Further, the number of entities subject to NAGPRA has
potentially grown as a result of federal financial assistance provided
in response to the COVID-19 pandemic and we do not yet understand the
universe of potentially affected institutions. \4\
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\4\ NAGPRA defines a museum as any institution or state or local
government agency, including any institutions of higher learning, that
receives federal funds and has possession or control over Native
American cultural items.
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Question 4. Why is improving museum and federal agency consultation
with Tribes and Native Hawaiian organizations critical to the
implementation of NAGPRA, and what are some potential impacts of
improved consultation?
Answer. Enhancing agencies' consultation with tribes and Native
Hawaiian organizations is important to implementing NAGPRA for several
reasons. First, regular and meaningful consultation with tribal
officials could help strengthen government-to-government relationships
by developing relationships with and enhancing trust between tribes and
the United States, which are critical to sensitive issues such as
repatriation. Second, in-depth consultation with tribes and Native
Hawaiian organizations could help address issues related to the
repatriation of the hundreds of thousands of Native American cultural
items held by federal agencies and museums in accordance with NAGPRA,
would help foster collaborative rather than adversarial interactions,
and could potentially reduce the risk of costly litigation. Third,
regular and meaningful consultation is important for leveraging the
tribal knowledge that is necessary to support efficient and successful
repatriations.
Question 5. What statutory and regulatory changes are needed to
improve agency and museum compliance?
Answer. GAO has not analyzed NAGPRA and its implementing
regulations or Interior's draft proposed revised NAGPRA regulations to
determine what changes, if any, may be necessary to improve federal
agency and museum compliance. However, we are aware of the National
NAGPRA Program's plans to revise NAGPRA regulations and the concerns
raised by stakeholder groups, such as the National Association of
Tribal Historic Preservation Officers and Association on American
Indian Affairs. For example, these stakeholder groups have expressed
concerns with the current statutory definition of Native American. They
have also expressed concerns about how the process for determining
cultural affiliation used by agencies and museums has resulted in more
than 90 percent of human remains of ancestors being deemed culturally
unidentifiable.
Question 6. What are the key contextual factors Congress should
consider as it evaluates potential changes to NAGPRA?
Answer. The significant experience that tribes, agencies, and
institutions have gained since enactment of NAGPRA, together with the
increased awareness of the importance of protecting and repatriating
cultural items to Native American cultures, warrant renewed
consideration of aspects related to NAGPRA implementation. In 2018, GAO
recommended that relevant federal agencies assess, in consultation with
tribes, whether and how amending the U.S. legal framework governing the
export, theft, and trafficking of Native American cultural items would
facilitate their repatriation from overseas auctions and report their
findings to Congress. \5\ Relatedly, in April 2021, the Safeguard
Tribal Objects of Patrimony Act of 2021 was introduced in the House and
Senate. If enacted, these bills would enhance protections for Native
American cultural items, including explicitly prohibiting the export of
certain items and increasing the penalties for trafficking such items.
---------------------------------------------------------------------------
\5\ GAO-18-537.
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As Congress evaluates potential changes to NAGPRA, contextual
factors to consider would include:
Annual data from the National NAGPRA Program. In response to
our 2010 report, the National NAGPRA Program began collecting
and reporting data on federal agencies' implementation of
NAGPRA, including the costs associated with undertaking work
borne by tribes, agencies, and institutions that are affected
by the case-by-case nature of each repatriation. In its 2018-
2019 report to Congress, the NAGPRA Review Committee described
the volume of remaining repatriation work as daunting. In
addition, it noted that NAGPRA compliance is more costly than
originally estimated and also more complex because each
repatriation must be addressed on a case-by-case basis.
Tribal consultation. We appreciate the importance-and the
potential complexity-of consultation between agencies and
tribes. A 2021 presidential memorandum reaffirmed the policy of
federal agency consultation with tribal officials in the
development of federal policies that have tribal implications,
which strengthens the nation-to-nation relationship between the
United States and tribal nations. \6\ In its prior work, GAO
has identified agency practices that facilitate effective
consultation, as well as a list of leading practices that
agencies can use when collaborating with its stakeholders. \7\
Agencies can leverage this knowledge to enhance their
consultation and collaboration with tribes, which may
facilitate implementation with NAGPRA.
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\6\ Presidential Memorandum, Tribal Consultation and Strengthening
Nation-to-Nation Relationships, 86 Fed. Reg. 7491 (Jan. 29, 2021).
\7\ GAO-19-22.
Benefits and challenges of technological developments.
Technological developments in the 30 years since NAGPRA was
enacted have changed the ways information is obtained, stored,
and shared. One potential benefit of technological advancements
is the potential to use remote sensing technologies to
inventory cultural sites without disrupting them through
excavation. However, technological developments can also
introduce new challenges. For example, technological changes
that have increased the ease with which we can communicate with
one another have also created opportunities for the illicit
trade of Native American cultural items.
______
Response to Written Questions Submitted by Hon. Brian Schatz to
Valerie Grussing, Ph.D.
Question 1. This Committee previously considered and reported out
legislation to amend the definition of ``Native American'' in NAGPRA to
mean ``of, or relating to, a tribe, people, or culture that is or was
indigenous to the United States.'' How would adding ``or was'' help to
ensure the intent of NAGPRA is met?
Answer. Amendments to the definition of ``Native American,''
similar that that proposed in our written testimony, were previously
considered by the Senate in the 108th, \1\ 109th, \2\ and 110th \3\
Congresses. This proposed amendment is intended to address the
misinterpretation of the term by the United States Court of Appeals for
the Ninth Circuit in Bonnichsen v. United States that, focusing on the
word ``is'' in the definition, required that human remains and other
cultural items ``must bear a significant relationship'' to a presently
existing Tribe, people, or culture to be considered Native American.
\4\ In doing so, the court mistakenly conflated the initial
determination that human remains or cultural items are ``Native
American,'' and thus subject to NAGPRA, with the subsequent requirement
to identify which present-day lineal descendant, Indian Tribe, or
Native Hawaiian organization has a right to claim them. In NAGPRA,
Congress clearly anticipated that there would be situations in which no
lineal descendant or affiliated Indian Tribe or Native Hawaiian
organization could be identified and delegated to the Department of the
Interior responsibility for creating separate mechanisms for the
disposition of ``unclaimed'' Native American human remains and cultural
items that were excavated or discovered on Federal or Tribal lands, \5\
or ``culturally unidentifiable'' Native American human remains in the
possession or control of a Federal agency or museum. \6\ Our proposed
amendment to the definition of ``Native American'' is meant to separate
the Native American determination from the subsequent determinations of
affiliation and resolve the ambiguity created by the Ninth Circuit's
incorrect interpretation that continues to have a negative impact on
implementation of both the civil and criminal provisions of NAGPRA.
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\1\ S. 2843, 108th Cong. 14 (Sept. 23, 2004).
\2\ S. 536, 109th Cong. 108 (May 12, 2005).
\3\ S. 2087, 110th Cong. 2 (Sept. 25, 2007).
\4\ Bonnichsen v. United States, 367 F.3d 864, 878 (9th Cir. 2004).
\5\ 25 U.S.C. 3002(b); 43 C.F.R. 10.7.
\6\ 25 U.S.C. 3006(c)(5); 43 C.F.R. 10.11.
Question 2. Is oral tradition afforded the same weight as other
forms of evidence used to establish cultural affiliation under NAGPRA?
Even if given the same weight under NAGPRA, is there a practical
disparity in how it is used or treated? Are you aware of any instances
where Tribes have chosen to forego the use of oral tradition because,
in their experience, it is undervalued by museums and federal agencies?
How can this be corrected?
Answer. In determining the cultural affiliation of Native American
human remains and funerary objects, the Congress directed museums and
Federal agencies to consider a broad range of relevant evidence,
including oral tradition. \7\ Regulations implementing NAGPRA have
applied this evidentiary standard to the determination of cultural
affiliations of all cultural items. \8\
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\7\ 25 U.S.C. 3005(a)(4) (``[S]uch Native American human remains
and funerary objects shall be expeditiously returned where the
requesting Indian tribe or Native Hawaiian organization can show
cultural affiliation by a preponderance of the evidence based upon
geographical, kinship, biological, archaeological, anthropological,
linguistic, folkloric, oral traditional, historical, or other relevant
information or expert opinion.'').
\8\ 43 C.F.R. 10.2(e)(1), 10.14(e).
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A 2016 study provides insight into how oral tradition evidence has
factored into determinations of cultural affiliation. \9\ The study
analyzed 1,476 Notices of Inventory Completion published between 1992
and 2013 that determined cultural affiliation for 43,799 human remains
and 1,165,838 funerary objects. The study found that 36 percent of the
notices considered oral tradition evidence, with Federal agencies
considering it 51 percent of the time and museums 31 percent of time.
No notices solely relied on oral tradition evidence nor did any use
oral tradition to tip the scale toward a finding of cultural
affiliation.
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\9\ Jason Roberts, Unwinding Non-Native Control over Native
America's Past: A Statistical Analysis of the Decisions to Return
Native American Human Remains and Funerary Objects under the Native
American Graves Protection and Repatriation Act, 1992-2013, 38 U. OF
HAW. L. REV. 337 (2016).
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Even when considered, oral tradition evidence is often accorded
limited value by museums, Federal agencies, and the Courts. In
Bonnichsen v. United States, the Ninth Circuit wrote that oral
tradition accounts are ``just not specific enough or reliable enough or
relevant enough. . . [b]ecause oral accounts have been inevitably
changed in context of transmission, because the traditions include
myths that cannot be considered as if factual histories, because the
value of such accounts is limited by concerns of authenticity,
reliability, and accuracy, and because the record as a whole does not
show where historical fact ends and mythic tale begins. . . .'' \10\
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\10\ Bonnichsen, 367 F.3d at 881-82.
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This problem is not just limited to NAGPRA. Tribes note that
Federal agencies tend to require a higher burden of proof when
nominating historic properties to the National Register for Historic
Places and during Section 106 reviews under the National Historic
Preservation Act when they are supported by tribal traditional
knowledge.
Tribes are often reluctant to allow public scrutiny of their most
sensitive oral tradition evidence, particularly that related to
religious practices. In one example, after four years of litigation,
including the United States Court of Appeals for the Tenth Circuit
vacating the United States District Court for the District of New
Mexico's dismissal of its lawsuit, \11\ a Tribe filed a motion to
dismiss the case in part due to concerns for subjecting its traditional
religious leaders to cross examination at trial over Tribal oral
tradition. \12\
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\11\ Pueblo of San Ildefonso v. Ridlon, 103 F.3d 936 (10th Cir.
1996).
\12\ Pl.'s Mot. to Dismiss with Prejudice, Pueblo of San Ildefonso
v. Ridlon, No. 93-cv-01467 (D. N.M. Apr. 30, 1997) (Dkt. No. 70).
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A suggestion for correcting this biased and patriarchal approach is
described in our response to your question 3 below.
Question 3. Building on your testimony, how does California's
version of NAGPRA (CalNAGPRA) better incorporate Tribal oral tradition
into the repatriation process, and how does it balance the tension the
court dealt with in Bonnichsen v. U.S.?
Answer. The California Native American Graves Protection and
Repatriation Act (CalNAGPRA), initially enacted in 2001, was amended in
2021 in part to address shortcomings of NAGPRA. Whereas NAGPRA does not
define ``oral tradition,'' CalNAGPRA uses a similar term of ``tribal
traditional knowledge'' which it defines as: ``knowledge systems
embedded and often safeguarded in the traditional culture of California
Indian tribes and lineal descendants, including, but not limited to,
knowledge about ancestral territories, cultural affiliation,
traditional cultural properties and landscapes, culturescapes,
traditional ceremonial and funerary practices, lifeways, customs and
traditions, climate, material culture, and subsistence. Tribal
traditional knowledge is expert opinion.'' \13\ CalNAGPRA then goes on
to give tribal traditional knowledge deference by defining
``preponderance of the evidence'' as ``the party's evidence on a fact
indicates that it is more likely than not that the fact is true. Tribal
traditional knowledge alone may be sufficient to meet this standard. If
there is conflicting evidence, tribal traditional knowledge shall be
provided deference.'' \14\ CalNAGPRA provides an explicit definition of
the term and makes explicit to Tribes, museums, agencies, and the
courts that Tribal traditional knowledge may be used alone as well as
being accorded deference in conflicting situations.
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\13\ Cal. Health & Safety Code 8012(p).
\14\ Cal. Health & Safety Code 8012(k).
Question 4. How does the current definition of ``museum''
complicate implementation of NAGPRA, particularly as it pertains to
repatriation? Are there any other definitions in NAGPRA that present
similar challenges?
Answer. In NAGPRA, Congress defined ``museum'' as ``any institution
or State or local government agency (including any institution of
higher learning) that receives Federal funds and has possession of, or
control over, Native American cultural items. Such term does not
include the Smithsonian Institution or any other Federal agency.'' \15\
NATHPO fully supports the statutory language but has major concerns in
how the Department of the Interior has interpreted the phrase
``possession of, or control over,'' both in the current regulations and
the draft proposed rule. Neither ``possession'' nor ``control'' are
defined in NAGPRA, thus the common meaning of the terms should apply.
Instead, the current regulations define both simple terms with self-
referencing and confusing legalese that requires in both instances ``a
sufficient legal interest to lawfully treat the objects as part of its
collection for purposes of these regulations.'' \16\ The draft proposed
regulations double-down on this regulatory sleight of hand by
eliminating the term ``possession'' entirely. NATHPO pointed out in its
comments on the draft proposed regulations that this new scheme is
inconsistent with the statute's clear language requiring museums and
Federal agencies to provide Indian Tribes and Native Hawaiian
organizations with summaries and inventories of cultural items in their
``possession or control.'' While the proposed scheme would be more
convenient for museums and Federal agencies to implement, it will
systematically deprive Indian Tribes and Native Hawaiian organizations
of information on holdings or collections in a museum or Federal
agency's possession but not in their control. It is also inconsistent
with the clear statutory language and Congress's intent and constitutes
an abuse of discretion. We request that the Department of the Interior
revise Subpart C of the draft proposed regulations to focus on Native
American collections or holdings in the possession or control of
museums and Federal agencies, as intended by Congress, define
``possession'' as it has the term ``custody'' in the draft proposal,
and revise the reporting requirements so that museums and Federal
agencies must provide summaries and inventories of all cultural items
in their possession or control, as required by NAGPRA.
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\15\ 25 U.S.C. 3001(8).
\16\ 43 C.F.R. 10.2(a)(3)(i), (ii).
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______
Response to Written Questions Submitted by Hon. Ben Ray Lujan to
Valerie Grussing, Ph.D.
Question 1. Why is dedicated funding for the Bureau of Indian
Affairs for NAGPRA compliance vital to the intent and reach of the law,
and how would it improve the Bureau's prevention of and response to
theft and damage of NAGPRA cultural resources, such as those that
occurred to petroglyphs in New Mexico?
Answer. NAGPRA establishes three separate sets of responsibilities
for federal agencies: compliance, implementation, and enforcement.
NATHPO has different administrative and funding recommendations for
each.
Compliance. Each Federal agency is required to comply with the
repatriation provisions for cultural items in its possession or
control, \1\ and the ownership provisions for excavations and
discoveries on lands under its control. \2\ In a 2010 report focusing
on the repatriation provisions, the Government Accountability Office
(GAO) documented that one of the primary challenges faced by the eight
Federal agencies reviewed (Bureau of Indian Affairs, Bureau of
Reclamation, Bureau of Land Management, National Park Service, Fish and
Wildlife Service, Army Corps of Engineers, Forest Service, and
Tennessee Valley Authority) was a lack of funding and staff only
working on NAGPRA compliance for historical collections as a collateral
duty. \3\ NATHPO believes that this situation has not significantly
changed in the past twelve years and recommends that Congress consider
dedicated funding to enable each Federal agency, including the Bureau
of Indian Affairs, to comply with its repatriation responsibilities.
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\1\ 25 U.S.C. 3003-3005.
\2\ 25 U.S.C. 3002.
\3\ Gov't Accountability Office, Native American Graves Protection
and Repatriation Act: After Almost 20 Years, Key Federal Agencies Still
Have Not Fully Complied with the Act, GAO-10-768 at 16 (July 2010).
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The GAO has not yet conducted a similar evaluation of Federal
agencies' compliance with NAGPRA's ownership provisions. NATHPO hears
from Tribal Historic Preservation Officers (THPO) that in many cases
Federal agency officials are failing to adequately consult with Indian
Tribes following inadvertent discoveries and are failing to complete
the plans of action required by regulation. To get a better grasp of
Federal compliance with NAGPRA's provisions protecting Native American
graves and cultural items, we ask the Committee to request the GAO to
complete an evaluation of Federal agency compliance with the ownership
provisions of NAGPRA and its implementing regulations, particularly
focusing on consultation, completion of plans of action and
comprehensive agreements, publication of notice of intended
disposition, the disposition of so-called ``unclaimed'' cultural items,
and whether establishing dedicated positions to ensure compliance with
these provisions at each agency would be beneficial.
Implementation. Congress assigned responsibility for implementing
NAGPRA to the Secretary of the Interior. These duties include providing
staff support for the Native American Graves Protection and
Repatriation Review Committee (Review Committee); promulgating
implementing regulations; publishing notices submitted by museums and
Federal agencies in the Federal Register; granting inventory extensions
to museums; awarding grants to museums, Indian Tribes, and Native
Hawaiian organizations; and assuming responsibility for inadvertent
discoveries at the request of another department. The Secretary has
retained sole authority to appoint members to the Review Committee.
Authority to promulgate regulations, award grants, and grant inventory
extensions has been delegated to the Assistant Secretary for Fish and
Wildlife and Parks. \4\ The National Park Service has been delegated
responsibility for publishing notices in the Federal Register, serving
as the designated Federal official to the Review Committee, and
providing staff support to the Assistant Secretary for Fish and
Wildlife and Parks regarding regulations, grants, and extensions.
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\4\ Dep't of Interior, Departmental Manual, 209 DM 6.8.
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NATHPO believes that these implementation duties would be more
appropriately assigned to the Office of the Assistant Secretary for
Indian Affairs. We believe that there are two primary factors
supporting this redelegation: 1) the importance of asserting
definitively that the primary beneficiaries of NAGPRA are the lineal
descendants, Indian Tribes, and Native Hawaiian organizations seeking
the return of their ancestors and cultural items; and 2) the dangers of
maintaining the implementation program within a land managing and
collection managing bureau which is required to also comply with the
statutory provisions. Similar criteria were previously used to
establish the Office of the Special Trustee for American Indians, now
called the Bureau of Trust Funds Administration, which is currently
overseen by the Office of the Assistant Secretary for Indian Affairs.
\5\
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\5\ Bureau of Trust Funds Admin, https://www.bia.gov/btfa (accessed
Mar. 10, 2022).
---------------------------------------------------------------------------
Enforcement. Enforcement of NAGPRA consists of two functions.
First, the Secretary of the Interior is authorized to assess civil
penalties on any museum that fails to comply with the repatriation
provisions of the law. Authority to investigate allegations of failure
to comply and assess civil penalties has been delegated to the Office
of the Assistant Secretary for Fish and Wildlife and Parks. \6\ Second,
the Attorney General is authorized to file criminal charges against any
person who knowingly buys, sells, uses for profit, or transports for
sale or profit Native American human remains or cultural items, with
investigative authority generally shared between the Federal Bureau of
Investigation and various land managing agencies. NATHPO believes that
it would be appropriate to centralize the Department of the Interior's
investigatory functions for both civil penalties and criminal charges
within the Bureau of Indian Affairs Office of Justice Services, with
civil penalties being assessed by the Assistant Secretary for Indian
Affairs and criminal charges being brought by the Department of
Justice. While dedicated funding would be coordinated by the Bureau of
Indian Affairs, evidence presented in our written testimony
demonstrates the value of having a multi-agency investigatory effort
similar to the Four Corners Interagency ARPA taskforce in the early
1990s.
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\6\ Dep't of Interior, Departmental Manual, 209 DM 6.8.
Question 2. If enforcement of NAGPRA was moved to the Bureau, what
would be the consequences for NAGPRA's enforcement?
Answer. The limited information provided by the National Park
Service indicates that no investigations of allegations for failure to
comply have been completed and no civil penalties have been assessed
for several years, while information from 2017 indicates there exists a
considerable backlog of uninvestigated allegations. Any activity to
investigate current and future allegations of failure to comply and to
hold museums accountable would be an improvement, and we believe that
the Bureau of Indian Affairs would approach this task focusing on
righting the wrongs done to lineal descendants, Indian Tribes, and
Native Hawaiian organizations without having to consider the effect of
such investigations on other programs providing assistance to the
museum community. Regarding enforcement of the criminal provisions, the
Bureau of Indian Affairs has the opportunity to serve a coordinating
role with the Federal Bureau of Investigation and law enforcement from
other land managing agencies to investigate reported violations of 18
U.S.C. 1170 and refer those cases to the Department of Justice for
prosecution.
Question 3. [Will] 10.5 (c) of the proposed NAGPRA regulations
change Tribal and Native Hawaiian Organization notification immediately
following the discovery of Native American items or remains?
Answer. In our response to your fifth question below, we present a
detailed analysis of the differences in the inadvertent discovery
process, including the current requirement for Federal officials to
notify and consult immediately following the discovery. Representatives
of the National Park Service have consistently justified many of the
changes in the draft proposal as an attempt to ``simplify the existing
regulations.'' Removing the notification and consultation requirements
clearly shows that such simplification is being done to the detriment
of administrative accountability in general, and to the rights of
lineal descendants, Indian Tribes, and Native Hawaiian organizations in
particular.
Question 4. Under 10.5 (d) of the proposed NAGPRA regulations,
why is there no Plan of Action required?
Answer. In our response to your fifth question below, we present a
detailed analysis of the differences in the inadvertent discovery
process, including the current requirement for Federal officials to
prepare a Plan of Action. Representatives of the National Park Service
have consistently justified many of the changes in the draft proposal
as an attempt to ``simplify the existing regulations.'' Removing the
Plan of Action requirements clearly shows that such simplification is
being done to the detriment of administrative accountability in
general, and to the rights of lineal descendants, Indian Tribes, and
Native Hawaiian organizations in particular.
Question 5. What course of action is required when there is an
unintentional discovery of cultural items, such as ground disturbances
due to 1) a flood or other weather event, 2) ongoing maintenance such
as cleaning a culvert, or 3) unauthorized excavation of Native American
graves such as carried out by thieves? What action is required under
the existing NAGPRA regulations and under the proposed NAGPRA
regulations?
Answer. Immediate Notification. Any person who discovers Native
American cultural items on Federal or Tribal lands must immediately
notify the responsible Federal or Tribal official. For discoveries made
as part of an ongoing activity, such as your example of cleaning a
culvert, the person making the discovery must stop the activity in the
area of the discovery and make a reasonable effort to protect the
cultural item. \7\ All Federal authorizations to carry out land use
activities on Federal lands or Tribal lands, including all leases and
permits, must include this requirement. \8\ NATHPO has requested that
the Department of the Interior revise its draft proposed rule to
explicitly address the common situation where ground-disturbing
activity is unintentional, such as your example of a flood or other
weather event, or other types of situations like looting which cannot
be stopped solely by regulatory edits.
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\7\ 43 C.F.R. 10.4(b).
\8\ 43 C.F.R. 10.4(g).
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Certification and Consultation. The current regulations require
that within three working days of receiving notification of the
discovery, the responsible Federal official must certify receipt of the
notification, take immediate steps to further secure and protect the
discovered cultural item, and notify any known lineal descendant and
culturally or geographically affiliated Indian Tribe or Native Hawaiian
organization and begin consultation. \9\ The Department of the
Interior's draft proposed regulation would change the three working day
deadline to five business days and eliminate entirely the requirement
to notify known lineal descendants and culturally affiliated Indian
Tribes or Native Hawaiian organizations as soon as the discovery is
made. \10\ The proposed change would mean that that the Federal
official would be allowed to take unilateral and unsupervised actions
regarding the discovered cultural items, including stabilizing or
covering them, \11\ evaluating the potential need for excavating them,
\12\ and certifying that the ground-disturbing activity may proceed,
\13\ with no input from the lineal descendants and affiliated Indian
Tribes and Native Hawaiian organizations.
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\9\ 43 C.F.R. 10.4(d)(1).
\10\ Draft proposal 10.5(c).
\11\ Draft proposal 10.5(c)(1).
\12\ Draft proposal 10.5(d).
\13\ Draft proposal 10.5(e).
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NATHPO strongly objects to both of these changes. Three working/
business days is sufficient time to enable the Federal official to
carry out the required tasks to ensure that the discovered cultural
items are protected. Elimination of the consultation requirement is
certainly inconsistent with the Secretary's goal of strengthening
government-to-government relationships between the Federal government
and Indian Tribes, particularly in a situation involving an issue as
sensitive as the protection of tribal ancestors and other cultural
items where NAGPRA affirms ownership or control in the time.
Plan of Action. The current regulations require that following
consultation with lineal descendants and affiliated Indian Tribes and
Native Hawaiian organizations, the Federal agency official must
prepare, approve, and sign a written plan of action to identify the
kinds of objects considered as cultural items, specific information
used to determine custody, planned treatment, care and handling of
recovered cultural items, planned archeological recording of the
cultural items recovered, any kind of analysis planned for each kind of
object, any steps to be followed to contact Indian Tribe officials, the
kinds of traditional treatment to be afforded the cultural items by
Tribal members, the nature of reports to be prepared, and the planned
disposition of the cultural items. \14\ The Department of the
Interior's draft proposal would eliminate this requirement entirely and
replace it with a ``certification'' sent only to the person responsible
for the ground disturbing activity affirming that a reasonable effort
has been made to secure and protect the cultural items and that all
ground-disturbing activity in the area of the discovery has stopped;
instructing if further actions are needed to secure, protect, or
stabilize the cultural item; proposing a timeline and method for
excavation of the cultural items, if applicable; and identifying a date
on which lawful ground-disturbing activity may resume in the area of
the discovery. \15\ The entire process as re-envisioned by the
Department of the Interior would be done without consultation or even
notification of the lineal descendants or affiliated Indian Tribes.
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\14\ 43 C.F.R. 10.5(e).
\15\ Draft Proposal 10.5(e).
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Ceasing Activity in the Area of the Discovery. In NAGPRA, Congress
requires the cessation of activity in the area where a cultural item is
discovered from the moment of the actual discovery until a time at
least thirty days after the Federal official certifies receipt of
notification, after which the activity ``may'' resume. \16\ The current
regulations provide an option to shorten the thirty-day period if a
written, binding agreement is executed between the Federal agency and
the affiliated Indian Tribes or Native Hawaiian organizations which
adopts a recovery plan for the excavation or removal of the cultural
items. \17\ The Department of the Interior's draft proposal slightly
extends the cession period by counting business days instead of
calendar days, which NATHPO supports, but then changes the
discretionary minimum period in the current regulations to a mandatory
maximum period--''no later than''--which the Federal agency is
seemingly authorized to shorten at will without consultation with the
affected lineal descendants, Indian Tribes, and Native Hawaiian
organizations. \18\ NATHPO strongly objects to this proposed change and
believes it conflicts with the clear language of NAGPRA.
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\16\ 25 U.S.C. 3002(d)(1).
\17\ 33 43 C.F.R. 10.4(d)(2).
\18\ Draft Proposal 10.5(e)(4).
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Overall, NATHPO is very disappointed in the Department of the
Interior's proposed changes to the discovery provisions of the
regulations. The primary purpose of NAGPRA is to protect Native
American burial sites and the removal of cultural items from Federal,
Indian, and Native Hawaiian lands. \19\ NATHPO is shocked that the
Department of the Interior would now propose to conduct this process
without full consultation with the lineal descendants and affiliated
Indian Tribes and Native Hawaiian organizations.
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\19\ Providing for the Protection of Native American Graves, and
for Other Purposes, H. Rpt. 101-877, at 8 (1989).
Question 6. What is the role of Tribal Historic Preservation
Offices in groundbreaking activities off Tribal lands with regards to
NAGPRA.
Answer. THPOs are often designated by their Tribe to serve as its
official NAGPRA contact. In this role, they respond to notifications
from federal agency officials regarding inadvertent discoveries on
Federal lands for any cultural items that are either culturally
affiliated with their Tribe or were discovered on lands aboriginally
occupied by their Tribe. They may negotiate with federal agency
officials in the development of comprehensive agreements prior to
initiation of any planned excavations that are likely to recover Native
American cultural items and may be authorized to sign such agreements
on behalf of their Tribe. THPOs often serve as the liaison between
Federal agency officials and their Tribe's traditional religious
leaders. THPOs are also often authorized to receive Native American
cultural items excavated or discovered on federal lands from federal
agency officials and to coordinate their appropriate disposition.
______
Response to Written Questions Submitted by Hon. Ben Ray Lujan to
Rosita Worl, Ph.D.
Question 1. Dr. Worl, what would enacting the STOP Act mean for
expanding the scope, efficacy and intent of NAGPRA?
Answer. Expanding the scope, efficacy and intent of NAGPRA by
enacting the STOP Act fills a major void in NAGPRA which does not
protect cultural heritage objects from export or from trafficking via
international auction venues through which hundreds of such items are
exchanged among private collectors on a regular basis. Reconnecting
Native American communities with their cultural traditions through
restoration of the cultural objects made by their ancestors is the
greatest benefit of the STOP Act, as it remains under NAGPRA.
Currently, the only recourse for an Indian tribe or NHO to prevent the
international auction of such items is through persuasion or by
arranging for their purchase, both of which are beyond the reach of
NAGPRA and outside the realm of the possible for tribes from a
practical standpoint. For example, in 2014, with assistance and support
from the FBI and the State Dept. and the U.S. Embassy in Paris, SHI
attempted to persuade an auction house in Paris to remove a sacred
object from an upcoming auction. The auction house refused the request
citing French laws that did not prohibit such sales. In a very unusual
turnaround, SHI was later contacted by a non-profit organization in Los
Angeles and was informed that an unnamed board member, using personal
funds, attended the auction and purchased Hopi, Apache and Tlingit
items during the auction. This individual then offered to repatriate
the Tlingit item to SHI.
This item was a painted side of a bent wood box that was likely 100
years old or older. Due to the age of the object, the repatriation
provisions of NAGPRA, Section 7, would not apply. NAGPRA is limited in
scope because it only addresses cultural items taken from federal or
tribal lands after the passage of the act (1990). The STOP Act includes
provisions that would apply to such tangible cultural heritage under
Section 8, Voluntary Return. Furthermore, the STOP Act authorizes the
President to request agreements from foreign nations to encourage the
voluntary return of such items. The STOP Act thus provides mechanisms
not available in NAGPRA to facilitate the return of cultural heritage
from foreign nations including those that are put up for sale in
auctions. Such provisions are significant for SHI because thousands of
Tlingit, Haida and Tsimshian items have been removed for collections in
European museums starting in the late 1700s, which then became objects
of desire by individual collectors giving rise to the intense
contemporary interest in auctions of such items in Paris and other
European cities.
The STOP Act would significantly enhance the protections of Native
American tangible cultural heritage by extending the scope of NAGPRA
and ARPA into the arenas of exportation and international exchange of
these items which currently have limited regulation under federal law.
It would fulfill the promise of NAGPRA to protect and facilitate the
return such items that have been unlawfully alienated from Indian
tribes and have entered the international arena.
Question 2. Dr. Worl, are current NAGPRA criminal penalties
sufficient to stop the trafficking and exportation of cultural
patrimony? If not, how would increasing criminal penalties from 5 to 10
years of imprisonment, as the STOP Act does, help to deter illegal
trafficking of cultural items and human remains, both domestically and
abroad? In addition, right now, the criminal standard requires an
individual to ``know'' they are violating 18 USC 1170, as opposed to
``should have known.'' Do you recommend changing the criminal standard?
Answer. Existing criminal penalties under NAGPRA for theft and
trafficking in Native American cultural items are grossly inadequate to
discourage such practices. The frequency to which the 5-year
imprisonment penalty has been imposed in actual cases is unknown. In
one egregious case of which I am familiar, the trafficking of Native
American human remains and funerary objects resulted in a sentence of
only two years. \1\
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\1\ In 1999, after a two-year undercover investigation by the
National Park Service (NPS) special agents purchased Native American
human remains and funerary objects from a store in Island Springs,
Virginia. The store owner and his son were convicted of violating the
trafficking provisions of NAGPRA for the illegal sale of these remains.
They were also convicted of violating ARPA for the illegal sale of
archaeological resources and violating the Lacey Act for the illegal
sale of endangered/threatened species. In 2002, the store owner was
sentenced to two years in jail and fined $17,575, and two vehicles
(including a 2000 Ford Excursion) were seized. (Information Sheet:
Human Remains Confiscated in NAGPRA Trafficking Case, NPS Northeast
Region, June 29, 2005.)
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Calling out Native American human remains and cultural items as
defined in NAGPRA and ARPA for increased penalties of imprisonment for
trafficking and exportation, and ensuring that such penalties are
imposed, would constitute a significant response to such cases and
contribute substantially to deterring trafficking of these items.
The STOP Act will serve as a powerful deterrent to those who claim
ignorance that the objects they wish to export or sell by auction are
not highly important historical, cultural and sacred objects to Indian
tribes or NHOs. Ignorance of the historical and cultural significance
of these items should not be considered a legitimate defense against
illegal trafficking and exportation for those who profess knowledge of
the value of such items (such as collectors and dealers). By enabling
more substantial penalties for offenders and clarifying that the
``ignorance defense'' is unacceptable, the Act will provide a criminal
standard that is commensurate with the offense.
Question 3. Dr. Worl, given that the law specifies civil penalty
amounts be entirely determined by regulations, do you feel that the new
regulatory changes for civil penalties are sufficient for museum non-
compliance?
Answer. Civil penalties for museums of $7,037 per violation for any
failure to comply with NAGPRA is inadequate under present
circumstances, more than 30 years after passage of NAGPRA. Thirty (30)
years is more than adequate time for museums to have learned the
intricacies of NAGPRA and find ways to comply with all provisions in
the act. We would suggest a minimum penalty of $10,000-15,000 for each
failure to comply.
There is very limited data available about the incidence of failure
to comply on the part of museums. A lack of understanding of the scope
of the problem contributes to the perception that a lower penalty may
be sufficient to correct the problems. In the FY 2017 National NAGPRA
Program Annual Report, allegations of failure to comply with NAGPRA had
been received against 115 museums, fewer than half had been
investigated, allegations were substantiated against 22 museums and
only 11 museums had been assessed a civil penalty (Comments on draft
proposed NAGPRA regulations submitted by the National Association of
Tribal Historic Preservation Officers (NATHPO), Sept. 10, 2021).
According to the NATHPO comments, the National NAGPRA Program has
refused to provide subsequent data on the number of allegations or the
number of penalties assessed during subsequent years. We can only
assume that a substantial number of museums remain out of compliance
with NAGPRA. We support a higher penalty for any failure to comply with
NAGPRA.
Question 4. Dr. Worl, do the new regulations put enough pressure on
museums to expedite the repatriation process and do you trust that
Tribal concerns raised during the consultation process for the new
regulations will be passed along to the Review Committee?
Answer. Yes, the new regulations put adequate pressure on museums
to expedite the repatriation process. However, there is no guarantee
that Tribal concerns raised during the consultation process for the new
regulations will be passed along to the Review Committee. I do not
trust that this will be carried out without some sort of codification
in the draft regulations.
Question 5. Dr. Worl, what reforms to NAGPRA are needed to curb the
sale of cultural items by auction houses, and how could these reforms
be considered in the new draft NAGPRA regulations put forth by the
National Park Service?
Answer. This issue is of great concern to tribes across the U.S.
Unfortunately, NAGPRA is silent on this topic since it relates to the
sale of cultural items in private collections and private ownership. A
new law or provision in NAGPRA would be necessary to address this
issue. I do not see an avenue in the new draft regulations to address
it.
Question 6. Dr. Worl, what are the implications of 10.5(c) of the
proposed NAGPRA regulations which changes the process of Tribal and
Native Hawaiian Organization notification immediately following the
discovery of Native American items or remains?
Answer. This has serious implications to the established NAGPRA
process which requires that the Federal official notify by telephone
the appropriate Indian tribes or NHOs. Furthermore, the official is
responsible to initiate consultation on the discovery at this time.
While the Federal official is required to take immediate steps to
protect and secure any cultural items thus discovered, any such actions
will also be part of the consultation that will take place at this
time. This procedure ensures that Indian tribes and NHOs are directly
involved very early in any Federal response to the discovery.
In contrast, under the proposed regulations there is no similar
mandate for early and substantive involvement of tribes or NHOs in the
Federal response. The immediate notification of Indian tribes or NHOs
after a discovery is not mandated, nor is there a requirement for any
consultation at this point in the process. The timing of tribal
notification and the scope of communication is at the discretion of the
Federal official. As described below (response to Question 8), this
might occur up to two weeks or longer after the discovery. The
principal responsibility of the Federal official at this point is to
ensure that all cultural items are protected and secured, and once this
has been accomplished to evaluate whether further excavation will
follow. Indian tribes will be notified if there is a Comprehensive
Agreement in place, but there is no time constraint about when that
might happen except as may exist in the agreement. Tribes will be
notified later after the Federal official decides to proceed with
excavations.
Question 7. Dr. Worl, under 10.5(d) of the proposed NAGPRA
regulations, why is there no Plan of Action required?
Answer. Under the proposed NAGPRA regulations ( 10.5(d)), it
appears that Plans of Action are dropped and replaced by a streamlined
process that incorporates Comprehensive Agreements in lieu of Plans of
Action. The Plan of Action is a key document that should not be
eliminated because it ensures that there is full and in-depth
consultation upon a discovery of cultural item(s) and prior to
continuing the excavation or engaging in new excavations, immediately
after a discovery has been made. Existing regulations ensure that
Indian tribes and NHOs participate in the development of Plans of
Action in response to specific discoveries (planned or inadvertent) and
provide the means for tribal entities to incorporate the procedures
that they consider will result in their cultural items being treated
with respect according to their customs and traditions. Plans of Action
have the advantage of responding in a very timely manner to instances
of discovery. The existing regulations provide detailed and specific
guidance to federal officials regarding this document which is prepared
in consultation with affiliated tribes or NHOs and is of great benefit
to them. Plans of Action are more substantive than comprehensive
agreements, address the specific and unique conditions of a planned
action or inadvertent discovery, and are greatly preferred as compared
to the more generalized comprehensive agreements. In fact, they can
supersede Comprehensive Agreements if carried out as described in the
existing regulations.
Specifically, please refer to 10.3(c), Procedures, in existing
regulations for detailed specifications including prior written
notification by federal officials of Indian tribes or NHOs (including
those that are or are likely to be culturally affiliated with cultural
items that may be encountered during the activity, or those on whose
aboriginal lands the project resides); in-person consultations about
the agency's proposed treatment of cultural items that may be exposed;
and the completion of a written Plan of Action prior to the start of
the activity.
Question 8. Dr. Worl, what course of action is required when there
is an unintentional discovery of cultural items, such as ground
disturbances due to (1) a flood or other weather event, (2) ongoing
maintenance such as cleaning a culvert, or (3) unauthorized excavation
of Native American graves such as carried out by thieves? What action
is required under the existing NAGPRA regulations and under the
proposed NAGPRA regulations?
Answer. Under the existing regulations, all three of these
circumstances will be governed by the procedures for inadvertent
discoveries on Federal lands ( 10.4). The person who makes the
discovery provides immediate (telephone) notification with written
confirmation to the responsible Federal agency official. The Federal
official takes immediate steps to further secure and protect the
cultural items including stabilization or covering, notifies by
telephone the appropriate Indian tribes or NHOs and initiates
consultation on the discovery. The official will follow NAGPRA
procedures for intentional excavations if it is decided to the cultural
items must be removed or excavated.
Under proposed regulations, the person who makes the discovery must
immediately report the occurrence to the responsible Federal agency
official and send written documentation to the official within three
business days. Within five business days after receiving written
documentation of the discovery, the Federal official must ensure that a
reasonable effort has been made to secure and protect the cultural
items. The Federal proceeds to evaluate the need for excavation of the
cultural item(s). Excavation may be authorized only after compliance
with 10.6 (Excavation) or 10.4(b) (Comprehensive Agreement). Under
10.6 (Excavation), the Federal official may authorize an excavation
only after consultation with the appropriate Indian tribes and NHOs.
Under 10.4(b) (Comprehensive Agreement), the official notifies the
appropriate Indian tribes and NHOs. The Federal official may authorize
an excavation by providing a written authorization.
The consultation provisions in the existing regulations are
significantly compromised under the proposed regulations. The proposed
regulations do not provide for immediate (telephone) notification and
consultation with Indian tribes or NHOs following discovery of a
cultural item(s). Instead, the Federal official is notified. The
Federal official decides the appropriate treatment of the cultural
items following discovery (methods of securing the excavation site and
protecting the items) and may proceed without notifying the tribes. The
Federal official evaluates the need for excavation of the cultural
item(s). The emphasis of the process, as outlined in the draft
regulations relating to a Comprehensive Agreement or the consultation
following a discovery, is clearly on the process of excavation. If the
excavation activity is governed by a Comprehensive Agreement, the
Federal official is only required to inform consulting parties of the
discovery or excavation.
One of the major strengths of NAGPRA is the emphasis on
consultation. In my view, this attribute is significantly compromised
by the draft regulations regarding the Federal agency responses to
discoveries. The Plan of Action has been removed from the process,
which is a major document detailing the response to an inadvertent
discovery by a Federal agency developed through consultation and with
the participation of Indian tribes or NHOs in the actual response.
Plans of Action are developed prior to the start of an activity that
may result in a discovery, and as such ensure there is an efficient use
of time following a discovery. Under the proposed regulations, if
consultations regarding a specific discovery actually take place (which
is not guaranteed), these discussions occur after the discovery when
there is a time pressure to complete the process within a short time
period. This is a poor way conduct business with Indian tribes and
NHOs. It is disrespectful and places a burden on them to comply with
the interests of the Federal agency.
The draft regulations reduce the emphasis on a timely notification
and response to discoveries on the part of the Federal agency which is
unacceptable. The person who makes the discovery has three business
days to send written notification to the responsible Federal official,
after the receipt of which the official has another five business days
to ensure that the discovery has been secured and the ground-disturbing
activity has stopped. This means that it could take 2-3 weeks to
confirm an inadvertent discovery and to protect and secure the site
from which cultural items were removed or exposed. This delay is
unacceptable.
______
Response to Written Questions Submitted by Hon. John Hoeven to
Joy Beasley
Question 1. In your role as Associate Director for Cultural
Resources Partnerships and Science, what successes have you seen with
repatriating Native American human remains and other cultural items?
Answer. As Congress envisioned, repatriations have resulted in a
continuing dialogue and mutually beneficial relationship between Indian
Tribes and Native Hawaiian organizations and some museums and Federal
agencies. All parties have found the benefits of repatriation extend
well beyond the transfer of a specific item or collection. Since 1990,
the National Park Service has published almost 4,000 notices, allowing
for the repatriation of over 84,000 Native American ancestral remains
and over 1.5 million funerary objects. Nationwide, over 20 percent of
museums and Federal agencies have completed the work to repatriate all
of the Native American human remains in their collections. In some
states, like North Dakota, Alaska, and Hawaii, a majority of the
ancestral remains removed from the state have been repatriated (88
percent in North Dakota; 82 percent in Alaska; and 97 percent in
Hawai`i).
Question 2. What challenges still remain?
Answer. Despite a number of success stories, less than half of the
Native American ancestors in collections have been returned to their
traditional caretakers, largely due to identification of those
ancestors as ``culturally unidentifiable.'' Over 117,576 Native
American individuals are still in museum and Federal agency
collections, and 94 percent of those have not been culturally
affiliated with any present-day Indian Tribe or Native Hawaiian
organization. Under the current regulations, museums and Federal
agencies are not required to move the regulatory process forward unless
requested by Indian Tribes or Native Hawaiian organizations.
The Department is also aware that some collections subject to
NAGPRA remain unreported. Many Federal agencies are still trying to
locate extensive collections in non-Federal repositories in order to
complete the NAGPRA compliance process. Likewise, museums are
continuing to discover previously unknown or unreported collections
subject to NAGPRA that should be returned to their traditional
caretakers. In addition to repatriation of collections, the current
regulations, which are repetitive and at times confusing, have led to
inconsistent implementation of NAGPRA by Federal land managers. The
Department looks forward to working with stakeholders on revising the
current regulations to simplify, improve, and bring more consistency to
the regulatory process.
Question 3. Under the proposed revised regulations for NAGPRA, is
tribal consultation emphasized as an important part of the repatriation
process?
Answer. In the Act and the existing regulations, consultation is at
the center of all repatriation activities. The Department, however, has
heard repeatedly from Indian Tribes and Native Hawaiian organizations
that meaningful consultation is a continual challenge in repatriation
efforts. The Department believes changes to the regulations will help
make consultation on repatriation more meaningful and robust. The
Department has proposed adding to the regulations a definition of
consultation. It also proposes to shift the burden of initiating
consultation from Indian Tribes and Native Hawaiian organizations to
museums and Federal agencies. The Department is committed to
emphasizing in the revised regulations deference to Native American
customs, traditions, and the traditional knowledge of lineal
descendants, Indian Tribes, and Native Hawaiian organizations, whenever
possible in the repatriation process.
Question 4. What is the role of the Tribe when there is an
inadvertent discovery or planned excavation of Native American cultural
items on federal or tribal lands?
Answer. On all Tribal lands in Alaska and the continental United
States, the Act requires certain actions be taken by the appropriate
official for the Indian Tribe (including Alaska Native villages) when
there is a discovery or excavation of Native American human remains or
cultural items.
On all Federal lands in the United States, the Act requires certain
actions be taken by the appropriate official for the Federal land
managing agency when there is a discovery or excavation of Native
American human remains or cultural items. The existing regulations
require consultation with the Tribe after a discovery is made. In
revising the regulations, the Department is committed to strengthening,
to the maximum extent possible, the requirement for consultation with
Indian Tribes, Alaskan Native Villages, and Native Hawaiian
organizations on any discovery or excavation on Federal lands. The
Department will propose, in revising the regulations, a maximum number
of days before an activity could resume, allowing the appropriate
official time to consult with Indian Tribes and Native Hawaiian
organizations.
______
Response to Written Questions Submitted by Hon. Brian Schatz to
Joy Beasley
Question 1. Why does the NAGPRA Review Committee report for 2018-
2019 not include specific, complete, and up-to-date numbers related to
the status of NAGPRA civil and criminal compliance?
Answer. The NAGPRA Review Committee does not have any
responsibilities under the Act, the regulations, or its charter for
civil penalties. Therefore, the NAGPRA Review Committee report does not
include specific information regarding civil and criminal compliance.
The Secretary of the Interior has the responsibility for assessing
penalties. On behalf of the Secretary, the National NAGPRA Program
reports annually on the number of allegations received (0 in 2019, 0 in
2020, 1 in 2021) and the amount of funds collected for penalties
($59,111 since 1990). These statistics are appended to the Review
Committee report to Congress (for 2018-2019, see page 10). The National
NAGPRA Program is working to develop new reporting methods for civil
enforcement activities and expects to provide additional statistical
information in the NAGPRA Program Report for FY 2022.
Question 2. To date, how many total allegations of failure to
comply with NAGPRA has the National Park Service (NPS) received?
Answer. The National Park Service has received 142 allegations of
failure to comply with NAGPRA. Some allegations involve multiple
museums and are counted as more than one allegation. In other cases, an
allegation against one museum might result in an affirmation, in part,
and a determination of no failure, in another part, and those
allegations are counted separately. One allegation may result in
multiple violations but are still reported here as only one allegation.
As a result of how allegations are counted, the figures reported below
differ from what has been previously reported by the National Park
Service. Previous reports on enforcement counted the number of letters
received, the number of entities involved, and the number of violations
determined. The National Park Service is developing new reporting
methods for enforcement activities based on the number of allegations
as described below.
a.1 How many were affirmed?
26 allegations were affirmed.
a.2 Of those affirmed, how many civil penalties have been issued?
15 allegations resulted in a penalty.
4 allegations settled by other means.
7 allegations resulted in a finding that a penalty was not an
appropriate remedy.
b. How many were determined not to be a failure?
52 allegations were determined not to be a failure.
c. How many were not investigated?
64 allegations were evaluated but not investigated. See
Question 3.
Question 3. Is there a backlog of allegations pending
investigation?
Answer. There are currently 17 allegations that have been referred
for investigation; 42 allegations that do not require an investigation
but that do require further evaluation after an initial determination
was made; and 5 allegations that do not require investigation and can
be administratively closed.
a. How many allegations are currently pending investigation?
17 allegations are currently pending investigation.
b. What is the date of the oldest allegation still pending
investigation?
Chronology of oldest allegation:
1999--Allegation received;
2004--Referred for investigation;
2010--Investigated in part;
2013--Investigated in part.
c. What is the average age of the allegations still pending
investigation?
Average age of allegations still pending investigation is 11
years.
d. Where in the administrative process are these allegations still
pending investigation?
In order of priority:
1 allegation is actively being investigated;
2 allegations have not been investigated;
4 allegations have been investigated in part;
2 allegations relate to previously resolved cases;
7 allegations relate to already repatriated items;
1 allegation investigation on hold.
Question 4. We understand the NAGPRA Review Committee is currently
reviewing the draft proposed rule. Will you share comments made by
Tribes, Native Hawaiian Organizations, and their representatives with
the Review Committee to ensure it can fulfill its statutory
responsibility to advise the Secretary in the development of the
regulations? What other steps will you take to ensure robust
participation by the Review Committee?
Answer. The Department plans on publishing direct responses to all
comments received from Indian Tribes and Native Hawaiian organizations
during consultation. This document will include a summary of all
comments received while protecting the anonymity of each commentor.
Once a proposed rule is published, the Department will conduct
additional nation-to-nation consultation with Indian Tribes and Native
Hawaiian organizations. In July of 2021, the Secretary (through the
Designated Federal Official) requested that the Review Committee review
the draft regulations publicly available and develop written
recommendations for consideration. Since then, the Review Committee has
scheduled 37 hours of public meetings and has devoted nearly 50 percent
of that time to discussing the revised regulations. The Department
appreciates the input provided by the Review Committee on the draft
regulations.
Question 5. How would moving NAGPRA enforcement to the Bureau of
Indian Affairs impact implementation of the law? What other impacts
would such a move have?
Answer. Under the Act, the Secretary has the authority to delegate
administrative responsibilities for NAGPRA. The Department has
identified this as an issue and sought input from Indian Tribes and
Native Hawaiian organizations during consultation on the NAGPRA
regulations. The Department received 43 comments on the placement of
the NAGPRA Program during recent consultation and is still considering
how to implement any changes to the current delegations of authority.
Enforcement and implementation responsibilities would remain consistent
regardless of whether those duties were performed by the National Park
Service or the Bureau of Indian Affairs.
Question 6. Does NAGPRA apply to private museums that receive
funding through the CARES Act, the American Rescue Plan Act, or other
recent Congressional funding bills? If so, how will you ensure these
museums comply with NAGPRA, and what role will the new civil penalties
investigator play?
Answer. NAGPRA applies to any institution that receives Federal
funds and has possession or control of Native American human remains or
cultural items. Receipt of Federal funds may be direct or indirect and
is determined on a case-by-case basis. The revised regulations propose
to include additional information to assist institutions in determining
if NAGPRA applies. The goal of increasing enforcement activities is to
encourage museums to come into compliance before an allegation is made
or an investigation is required.
Question 7. Is Interior looking into application of NAGPRA to
Indian boarding school burial sites as part of its Federal Indian
Boarding School Initiative? What is the status of the Federal Indian
Boarding School Initiative's investigation and report?
Answer. The application of NAGPRA to Indian boarding school burial
sites depends largely on where the cemetery is located. NAGPRA applies
to intentional excavations on Federal or Tribal land, including
cemeteries. Questions about the application of NAGPRA to Indian
boarding schools were raised during both NAGPRA and Federal Indian
Boarding School Initiative consultations. In revising the NAGPRA
regulations, the Department cannot modify the definition of ``Federal
lands'' as provided in the Act, but the Department does encourage the
custodians of boarding school burial sites and related records to fully
consult with Indian Tribes and NHOs on identification, disinterment,
and repatriation of Native American children. The Department stands
ready to fully assist Indian Tribes and NHOs in that process to the
fullest extent of its authority.
The Federal Indian Boarding School Initiative report, Volume 1, was
published on May 11, 2022.
Question 8. During the hearing, you stated that the 2020-2021
NAGPRA Review Committee Report to Congress was finalized at the end of
November 2021 and is currently being prepared for transmittal to
Congress. Please submit a copy of that report to the Committee at your
earliest opportunity for the hearing record. Additionally, Congress did
not receive the NAGPRA Review Committee's Report for 2018-2019 until
January of 2022. Can you commit the Department to timely submissions of
the Review Committee Report to Congress in the future?
Answer. We transmitted the 2020-2021 report in June of this year.
Unique circumstances led to the delayed transmission of the 2018-2019
report. On June 28, 2021, the Review Committee requested the National
Park Service distribute the FY 2019 report as prepared in October 2019
as a separate report instead of combining it with a FY 2020 report. The
2018-2019 report was transmitted electronically to members of Congress
in December 2021.
Question 9. Have NAGPRA consultations been impacted by concerns
about the confidentiality of culturally sensitive information, and the
lack of protection from disclosure under the Freedom of Information
Act? Would adding Freedom of Information Act protections to the statute
make repatriation a more efficient and effective process for all
parties?
Answer. The Freedom of Information Act (FOIA) does not protect
sensitive cultural information on its own. Specific statutes such as
Archaeological Resources Protection Act or National Historic
Preservation Act include exemptions under FOIA, but NAGPRA does not.
NAGPRA does not require sensitive information to be recorded during
consultation, but some museums and Federal agencies record cultural
information that might be sensitive with NAGPRA records submitted to
the Department. As a result, the Department must release that
information when requested under FOIA. The Department will likely
propose revisions in the regulations to clarify that submissions should
not contain any information that might be sensitive. Furthermore, the
current regulations and proposed regulations require museums and
Federal agencies to protect sensitive information identified by
consulting parties after completing a repatriation.
______
Response to Written Questions Submitted by Hon. Ben Ray Lujan to
Joy Beasley
Question 1. I am grateful to see that the National Park Service has
hired David Barland- Liles as a full-time civil penalties investigator
to ensure museums comply with the law. Under the current NAGPRA
regulations, there are civil penalties if museums violate any of 9
specific actions. However, under the proposed NAGPRA regulations, civil
penalties for museums extend to any violation of NAGPRA. How will Mr.
Barland-Liles' civil penalty investigation work change if the proposed
NAGPRA regulations are adopted?
Answer. The Department believes changes to the regulations for
civil penalties will decrease the burden on the complainant who alleges
the failure as well as the investigator who must identify relevant
facts. Currently, the civil penalty process requires additional time
and resources in the initial phase for the complainant to identify
which of the specific 9 ways a museum has failed to comply and the
investigator to enumerate violations accordingly. By removing the
limitations on how a museum might fail to comply, a broad allegation
may lead the investigator to discover facts that show specific failures
to comply, which can be enumerated as individual violations.
Question 2. How does the National Park Service investigate
allegations of criminal violations?
Answer. The National Park Service does not have jurisdiction over
any criminal violations of NAGPRA. Criminal violations are under the
jurisdiction of the appropriate land managing agency or the Department
of Justice.
Question 3. Given that the National Park Service responds to every
NAGPRA inquiry, but its role in enforcing NAGPRA can be limited
depending on jurisdiction, how does the National Park Service
coordinate with other federal agencies to resolve pending inquiries?
Answer. The National Park Service has long established
relationships with relevant programs in the Department of Justice and
with land managing agencies. The new full-time investigator for the
National NAGPRA Program is tasked with continuing and strengthening
those relationships, as well as developing new partnerships,
specifically with state and local law enforcement that might also have
jurisdiction.
Question 4. I understand that in many instances, the National Park
Service does not have the resources to monitor all auction sales and
can rely on requests from Tribes and individuals to intercede on their
behalf. How does the National Park Service consider or refer NAGPRA
requests that do not go through the official process, such as requests
to intercede on behalf of a pot or treaty being sold at private
auction? To reform the way these requests are handled by the
administration, would new legislation amending NAGPRA be necessary?
Does the statute need a new mechanism to help facilitate the return of
NAGPRA items and remains held by private parties?
Answer. The National Park Service regularly receives information
related to auctions of Native American cultural items. Any potential
criminal violations are referred to the proper authorities with
jurisdiction. When requested by Indian Tribes to assist, the Department
provides information on the requirements of NAGPRA and an explanation
on how repatriation under NAGPRA works. In several cases, this has
proved useful in repatriations that occur voluntarily outside of the
requirements of the Act. Additionally, the National Park Service can
facilitate connections with museums, Indian Tribes, and Native Hawaiian
organizations, which are already involved in repatriations under
NAGPRA, who can often assist with private repatriations. Regarding
legislative changes, the Department is happy to provide technical
assistance.
Question 5. Another concern I have is the lack of oversight over
social media sites, like Instagram and TikTok, where human bones are
being bought and sold with no protections to deter potential
traffickers of Native American remains. While some sites like Etsy,
eBay and Facebook have tried to ban the sale of human remains, these
are poorly enforced. I know that the National Park Service has had
several referrals such as these and would be interested to hear how it
coordinates with other agencies to improve oversight. Given the growing
online market for human remains, has there been any thought to how the
new draft NAGPRA regulations will handle circumstances like the sale of
Native American remains on social media sites? How does the National
Park Service currently refer such allegations and work with other
federal agencies to investigate? In addition, right now, the criminal
standard requires an individual to ``know'' they are violating 18 USC
1170, as opposed to ``should have known.'' Do you recommend changing
the criminal standard?
Answer. The National Park Service, National NAGPRA Program, does
not have jurisdiction over any criminal violations of NAGPRA. Criminal
violations are under the jurisdiction of the appropriate land managing
agency or the Department of Justice. Criminal activities detected by
National NAGPRA Program staff beyond our jurisdiction and authority are
referred to the appropriate investigation and interdiction entity on a
case-by-case basis. The criminal standard is a burden of proof that
requires specific intent and changes to that language would likely
impact prosecution of trafficking violations.
Question 6. In consultations last summer, the National Park Service
estimated that 90 to 95 percent of human remains recorded under NAGPRA
could be geographically affiliated to one or more Tribes, which would
make them available to Tribes to request repatriation. I am concerned
that current law incentivizes museums and Federal agencies to identify
remains as ``culturally unidentifiable,'' even when a geographical
origin is known. This allows the institution to retain possession and
places the burden on Tribes to request items, show evidence of removal
from their Tribal lands, or prove affiliation by a preponderance of the
evidence. These procedures create an unjust balance of powers whereby
museums do not have to explain their positions and place a higher
burden on Tribes to reclaim what is rightfully theirs. How do the new
draft regulations strengthen Tribes' authority in the repatriation
process? Please specify how the new regulations clarify the standard of
proof for establishing cultural affiliation, and how the replacement of
``culturally unidentifiable'' with ``geographically affiliated'' will
expand timely consultation, repatriation of objects and remains, and
remove any incentive for museums and Federal agencies to label remains
and objects as ``culturally unidentifiable''? And how do you anticipate
these revised changes to the regulations will play out in New Mexico?
Answer. After over 30 years, less than half of the Native American
ancestors in collections have been returned to their traditional
caretakers, largely due to identification of those ancestors as
``culturally unidentifiable.'' Museums and Federal agencies still wield
a significant amount of power in determining what will be repatriated.
The Department believes this imbalance can be largely corrected with
revisions to the regulations.
One of the biggest challenges with NAGPRA are differences of
interpretation. For example, cultural affiliation, which the Act
identifies simply as a relationship between past and present people,
has been a major barrier to effective and efficient repatriation.
Specifically, the regulatory changes will shift the burden off Indian
Tribes and Native Hawaiian organizations to make requests to consult
and require museums and Federal agencies to not only initiate the
process for consultation but complete the regulatory steps and make
nearly all the ancestors in collections available to Indian Tribes for
repatriation.
The revised regulations as being drafted do not impose any new
requirements on Indian Tribes, nor do they remove a Tribe's ability to
make requests. Rather, the revisions will likely propose to shift the
burden of initiating consultation from the Tribe to the museum. The
Department recognizes and will reaffirm in the regulatory process that
Tribal sovereignty means there is no requirement for an Indian Tribe or
Native Hawaiian organization to act under NAGPRA unless the Tribe or
Native Hawaiian organization chooses to do so. After consultation and
notice by a museum, the Tribe would respond in its discretion, per
usual, but with greater information before committing resources to the
matter.
In New Mexico, specifically, about 70 percent of the Native
American human remains removed from New Mexico have completed the
regulatory process for repatriation. The remaining 30 percent number
just over 3,000 individual ancestors still in collections awaiting
return to Indian Tribes and Pueblos of New Mexico. Only about 32
percent of those ancestors (976 individuals) are in museums in New
Mexico. Another 27 percent (848 individuals) are held by Federal
agencies and the remaining 41 percent (1,268 individuals) are held by
museums in other states. Revisions to the regulations would mean that
museums in other states, as well as Federal agencies and museums in New
Mexico, would be required to complete the process to repatriate all
individuals known to be from the Indian Tribes and Pueblos in New
Mexico.
Question 7. During the week of January 17, 2022, the Bureau of Land
Management reported vandals sprayed graffiti over the La Cieneguilla
Petroglyphs, some 8,000 years old, in Santa Fe County, New Mexico. The
All Pueblo Council of Governors, who represent 20 Pueblos in New Mexico
and Texas, quickly condemned this desecration and called for the Bureau
of Land Management and U.S. Forest Service to investigate and respond
to the incident. In addition, just last year, the National Park Service
had to investigate damage at the Petroglyph National Monument outside
Albuquerque caused by visitors making cairns (mounds of rock) out of
rocks from archaeological sites. Despite these continued threats, in
2018 National Park Service officials stated that data on NAGPRA crimes
had not been collated since 2011, despite agencies individually
collecting this data. In addition, there is no federal requirement that
agencies track NAGPRA violations and create a central repository for
nationwide data. How is the National Park Service responding to the GAO
report on data collection and best practices to improve coordination
across agencies and NAGPRA enforcement? What is the status of that
response?
Answer. The National Park Service will report best practices
related to data collection to help improve protection of Native
American archeological resources. This voluntary data collection (the
Secretary of the Interior has no legal authority to require data from
other federal agencies) will focus on gathering information about
Archeological Resources Protection Act (ARPA) violations and will be
compiled by the Department Consulting Archeologist (DCA), who also
serves as the Bureau Archeologist for the National Park Service. This
data collection effort aimed at improving protection of Native American
archeological resources will be compiled and distributed by the DCA at
the end of FY 2022.
Question 8. The Bureau of Land Management, which manages the lands
on which the La Cieneguilla Petroglyphs are located, received a request
for Pueblos to be more involved in land management and called for the
Bureau to initiate Tribal consultations in light of the damage that
occurred to these petroglyphs. There is a lot of variation across
federal agencies interpret NAGPRA and engage in coordination and
consultation with Tribes and Pueblos. Has the National Park Service
engaged in similar collaboration and consultation with Tribes around
its land management practices to ensure greater compliance with NAGPRA
and data collection? In addition, how has Tribal co-management of
federal lands through agency management plans improved NAGPRA
enforcement and the management of those lands?
Answer. The National Park Service has the authority to enter into
collaborative management agreements with Indian Tribes. These types of
agreements are encouraged through Secretary's Order 3342: Identifying
Opportunities for Cooperative and Collaborative Partnerships with
Federally Recognized Indian Tribes in the Management of Federal Lands
and Resources. This Order defines ``co-management,'' as ``a situation
where there is a specific legal basis that requires the delegation of
some aspect of Federal decisionmaking or that makes co-management
otherwise legally necessary.'' Co-management provides opportunities for
greater Tribal involvement in land-management decisionmaking. National
Park Service managers consult with Indian Tribes and Native Hawaiian
organizations to develop comprehensive agreements that address land
management activities that could result in excavation or discovery of
Native American human remains and cultural items on National Park
Service lands. These agreements, which are managed at the local level,
establish a process for effectively carrying out the requirements of
NAGPRA.
Question 9. As of April 2021, GAO reported that the National Park
Service and the Bureau of Indian Affairs had not implemented this
recommendation. What steps has National Park Service taken thus far to
implement GAO's recommendation and what is the status of those efforts?
Once implemented, how will this recommendation enable the National Park
Service to better prevent and respond to instances of cultural resource
theft and damage on federal lands? GAO recommended in its 2021 report
that the Department of the Interior should direct the National Park
Service to identify and obtain information to target efforts to protect
Native American cultural resources and identify risks.
Answer. The National Park Service is compiling, per the GAO report,
``promising practices'' to better protect Native American archeological
sites. The Bureau Archeologist is working with Law Enforcement to
improve data collection to track ARPA and NAGPRA violations. The
National Park Service is developing training for law enforcement
officers on ARPA that will be promoted across the Department of
Interior. This training provides Law Enforcement officers tools to
identify, document, and create prosecutable cases of archeological
resource violations.
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